Miller v. Corpman , 301 Mo. 589 ( 1923 )

On February 2, 1915, plaintiffs Anna V. Miller and Susie Jeffers filed, in the Circuit Court of Stoddard County, Missouri, a petition against appellants H.C. Corpman and Maggie Corpman, to ascertain and determine the respective titles, interests, etc., of said parties in and to the southwest quarter of the southeast quarter of Section 28, in Township 28 of Range 10 east, located in Stoddard County. On the application of appellants, the venue was changed, and the case tried before the court without a jury, in Mississippi County.

Defendants answered, and admitted therein that they claimed to be the owners in fee simple of the real estate aforesaid. They deny every other allegation in plaintiffs' petition. They further aver that in 1887, H.C. Corpman purchased all the outstanding title, if any they had, of S.P. Jeffers and Annie C. Jeffers, father and mother of plaintiffs, Annie V. Miller and Susie Jeffers, both of whom are dead; that said S.P. Jeffers and wife executed and delivered to Walter Phelan a power of attorney vesting in him authority to convey the land aforesaid, and that, pursuant to said power vested in him, said Walter Phelan sold and conveyed said land to defendant H.C. Corpman. They further aver that they have acquired title to said real estate by adverse possession under the ten- and thirty-year Statute of Limitations.

The reply is a general denial of the new matter contained in said answer.

On October 22, 1917, the court found that plaintiffs are each entitled to an undivided one-fourth interest in said land, and that the defendants are jointly entitled to an undivided one-half interest therein. Judgment was entered in accordance with the above findings. Motions for a new trial and in arrest of judgment were filed by defendants, overruled, and the cause duly appealed by them to this court.

It was agreed between the parties in interest that the title to the land in controversy passed out of the United States Government, and into the State of Missouri, on March 16, 1869, and that C. Alonzo Kitchen was the common source of title, and acquired the above land, in his name, as above described, on September 21, 1869. It was admitted by plaintiffs that Mrs. Anna C. Jeffers was the only child of C. Alonzo Kitchen, at the time of the pendency of the tax suit, which resulted in the tax deed, offered in evidence by defendants, to Charles E. Stokes.

Clara B. Burrus testified, in substance, that she was the grandmother of plaintiffs; that the mother of plaintiffs was Anna C. Jeffers; that said Anna C. Jeffers was the daughter of witness by Cornelius Alonzo Kitchen; that Mrs. Anna C. Jeffers was the only child of that marriage; that she (witness) executed the quit-claim deed to Anna V. Miller and Susie Jeffers, who are sisters; that both plaintiffs are daughters of said Anna C. Jeffers; that Price Jeffers was the husband of said Anna C. Jeffers; that the latter died in 1901, and Price Jeffers died in April, 1914; that the husband of witness owned lands in Stoddard, Butler and Dunklin counties, in Missouri; that she could not say her husband was ever in possession of the land in question; that her husband, Alonzo Kitchen, died in the Spring of 1870; that she had no recollection of his claiming the above land, and had no knowledge of his paying taxes thereon.

Plaintiffs then offered in evidence a quit-claim deed from Clara B. Burrus, to Anna V. Miller and Susie Jeffers, dated April 8, 1915. Appellants have not set out any part of said deed in the abstract, but objected to the introduction of same on the alleged ground that the grantor had no title. As the objection to the admission of said deed was overruled, we presume it covered the land in question.

Defendants offered in evidence a sheriff's tax deed to C.E. Stokes, dated December 6, 1879, conveying the land in question, and which will be referred to later. Appellants also offered in evidence a warranty deed, from Charles E. Stokes and wife, to Henry Bohlcke, dated January 27, 1882, conveying the land in controversy, which will also be considered later. Defendants offered in evidence a warranty deed from H. Bohlcke and wife to H.C. Corpman, dated October 24, 1887, conveying the land in question. Defendants next offered in evidence a quit-claim deed from Anna C. Jeffers, and S.P. Jeffers, to Walter Phelan, dated July 31, 1894, which was duly acknowledged and recorded, covering the undivided one-half interest of the land in question. Defendants offered in evidence a warranty deed purporting to have been executed on November 27, 1894, by said Anna C. Jeffers and S.P. Jeffers, her husband, by Walter Phelan, their alleged attorney in fact, and by said Walter Phelan in his own behalf, conveying the land in question to defendant, H.C. Corpman.

In order to avoid repetition, the foregoing and other testimony offered by defendants will be considered in the opinion.

The case was submitted to this court upon the abstract of record, and briefs of appellants, no brief having been filed here in behalf of respondents.

I. This case having been tried by the court without a jury, its finding of facts, if sustained by substantial evidence, is conclusive in this court. [Lee v. Conran, 213 Mo. l.c. 412; Minor v. Burton, 228 Mo. 558; Slicer v. Owens, 241 Mo. l.c. 323; Abeles v. Pillman, 261 Mo. l.c. 376; Buford v. Moore, 177Appellate S.W. l.c. 872; Truitt v. Bender, 193 S.W. l.c. 839;Practice. Coulson v. La Plant, 196 S.W. 1144; Roloson v. Riggs, 274 Mo. l.c. 528; Case v. Sipes, 280 Mo. l.c. 115,217 S.W. 306, and cases cited; Christine v. Luyties, 280 Mo. l.c. 426, 217 S.W. 55; Cowan v. Young, 282 Mo. l.c. 45, 220 S.W. l.c. 872; Bingham v. Edmonds, 210 S.W. 885; Nevins v. Gilliland, 290 Mo. l.c. 299-300, 234 S.W. l.c. 819; Kline Cloak Coat Co. v. Morris, 240 S.W. l.c. 100; Barr v. Stone, 242 S.W. l.c. 663; Zeitinger v. Hargadine-McKittrick Dry Goods Co., 250 S.W. l.c. 917.]

The trial court heard a large portion of the testimony offered by appellants, over respondents' objection, subject to the latter, and therefore made no definite ruling in respect to said matters. The rule of procedure adopted by the trial court, in respect to foregoing matters, has been condemned by theFailure appellate courts of this State. [Seafield v. Bohne, 169to Rule. Mo. l.c. 546; Asbury v. Hicklin, 181 Mo. l.c. 658; Morrison v. Turnbaugh, 192 Mo. 427; State v. Swearengin, 269 Mo. 185; Stone v. Fry, 191 Mo. App. l.c. 613; Hannon-Hickey Bros. Const. Co. v. Ry. Co., 247 S.W. l.c. 440.] The plaintiffs, however, are not complaining of the above ruling, and the defendants are in no position to do so.

It was agreed at the trial that the title to the land in question passed out of the United States Government, and into the State of Missouri, on March 16, 1869, and that C. Alonzo Kitchen was the common source of title, and that it was conveyed to him under the above name on September 21, 1869. It was admitted that Mrs. Anna C. Jeffers was the only child of C. Alonzo Kitchen, at the time of the pendency of the tax suit, which resulted in the tax deed, offered in evidence by defendants, to Charles E. Stokes. It was shown by Mrs. Burrus, the mother of Anna C. Jeffers, that the latter was the only child of Cornelius Alonzo Kitchen, and that the latter died in the Spring ofTitle by 1870. The trial court was, therefore, justified inInheritance. finding, from the undisputed facts, that on the death of C. Alonzo Kitchen, in 1870, Anna C. Jeffers, his daughter, became the legal owner of the real estate in question, subject to the dower interest of her mother, Clara B. Burrus, therein. These plaintiffs were the only children of Anna C. Jeffers and Price Jeffers, her husband. The latter died in April, 1914, and the former died in 1901. Clara B. Burrus executed a quit-claim deed to plaintiffs on April 8, 1915, and thereby conveyed to them her dower interest in said land, if it had not become barred by limitation. It was shown by defendants that Anna C. Jeffers and her husband, on July 31, 1894, executed a quit-claim deed to Walter Phelan, for the undivided one-half of the land in controversy, and, hence the court found that defendants were the owners of said interest.

It is, therefore, manifest from the foregoing that plaintiffs are the legal owners of the undivided one-half of the land in question, unless the defendants and their predecessors in title, by deed or otherwise, acquired from said Anna C. Jeffers the undivided half interest which she did not convey to Phelan in the quit-claim deed aforesaid.

II. It is claimed that whatever title Anna C. Jeffers acquired to the land in controversy by inheritance through her father, C. Alonzo Kitchen, who died in 1870, was lost to her by reason of the sheriff's tax deed read in evidence by defendants. Said deed recites that at the March term, 1880, of the StoddardLast Above Circuit Court, the sheriff exposed to sale at publicDescribed auction, for ready money, "the above described realTract. estate, and Charles E. Stokes being the highest bidder . . . for the following described real estate, viz:

"The Southwest one-half of Southeast quarter of Section 28, in township 28, range 10, and the Southeast quarter of Section 36, in township 24, range 12, for the sum of two and 35/100 dollars, also part of Northeast fractional quarter part of Southwest fractional quarter and Northwest quarter; all of Section 28, in township 27, range 8, for the sum of Five and 06/100 dollars. The said last above described tract was stricken off and sold to the said Charles E. Stokes for the sum bid therefor by him as above set forth.

"Now, therefore, in consideration of the premises, and of the sum of seven and 35/100 dollars, to me, the said sheriff, in hand paid by the said Charles E. Stokes, the receipt whereof I do hereby acknowledge, and by virtue of the authority in me vested by law, I, J.G. Lewis, sheriff as aforesaid, do hereby assign,transfer and convey unto the said Charles E. Stokes all the above described real estate so stricken off and sold to him that I might sell as sheriff as aforesaid, by virtue of the aforesaid judgment, execution and notice."

At the conclusion of the deed, the abstract contains the following: "Here describe each tract sold and price of same."

The trial court properly found from the evidence that the tax deed aforesaid, as shown by the italicised portion supra, doesnot purport to convey to Charles E. Stokes the land in question. The ruling of the court in respect to this matter is shown by Instruction I, given in behalf of plaintiffs, which reads as follows:

"The sheriff's deed shown in evidence was insufficient to divest title out of Anna C. Kitchen, the mother of these plaintiffs, for the reason that it does not mention or describethe lands in suit as having been conveyed thereby."

The ruling of the court in respect to foregoing matter is sustained by the following authorities: Sec. 12948, R.S. 1919; Nelson v. Brodhack, 44 Mo. l.c. 602-3; 8 R.C.L. sec. 127, p. 1072 and cases cited; Sligo Furnace Co. v. Hogue, 229 S.W. (Mo.), 190.

The last cited case is directly in point and clearly sustains the trial court in respect to above ruling.

III. It is claimed by appellants, as an abstract proposition of law, that a tax deed, although void, creates color of title and we are cited in support of this suggestion toColor of Dunnington v. Hudson, 217 Mo. 93. On page 100 of theTitle. case just cited, the court quoted with approval what was said in Hickman v. Link, 97 Mo. l.c. 488, as follows:

"Generally, it may be said that any writing which purports to convey the title to land by appropriate words of transfer, anddescribes the land, is color of title, though the writing is invalid, actually void, and conveys no title." (Italics ours.)

In the case at bar, however, as heretofore shown, thesheriff's deed does not purport to convey the land in question and, hence, the above authority is without application.

IV. It is asserted that if Mrs. Burrus ever had any dower in the land, her right was barred before she deeded same to plaintiffs under her quit-claim deed. As C. Alonzo Kitchen was conceded to be the common source of title and died in 1870, the owner of the land in controversy, his wife, Mrs. Burrus, must have had a dower interest therein. The statute barringDower. dower in ten years was passed in 1887. Mrs. Burrus therefore had a dower interest in said land in 1897. As the plaintiffs are claiming title to the land by inheritance from their mother, Anna C. Jeffers, it is immaterial whether the dower interest of Mrs. Burrus was barred when she quit-claimed the same to plaintiffs on April 8, 1915. If she had an interest it passed by the deed. On the other hand, if her dower interest was barred, it is out of the case.

V. It is contended that defendants acquired title to the land in question under the ten-year Statute of Limitations. The trial court, after hearing the evidence, found this issueLimitations. in favor of respondents, as shown by instruction numbered six, given on behalf of plaintiffs, which reads as follows:

"At the close of the testimony the court declares the law to be that under all of the evidence adduced in this cause the defendants are not entitled to recover on or under the ten-year Statute of Limitations."

The ten-year statute was relied on as an affirmative defense. It was the peculiar province of the trial court to pass upon same, as indicated in paragraph one of this opinion. The finding of the court on the facts presented in this record, is well sustained in Buford v. Moore, 177 S.W. l.c. 869, and following, and cases cited.

VI. The court is charged with error in refusing to hold that defendants had acquired title under their affirmative defense of the thirty-year Statute of Limitations. As stated in the preceding proposition it was the province of the trial court to pass upon the evidence relating toThirty-Year this affirmative defense. The court was not bound toStatute. believe the testimony offered by defendants, and its findings on this subject is conclusive under the authorities cited under paragraph one, supra. The court disposed of this defense in instruction numbered seven, given in behalf of plaintiffs, which reads as follows:

"At the close of the testimony the court declares the law to be that under all of the evidence adduced in this cause the defendants are not entitled to recover on or under the thirty-year Statute of Limitations."

We are of the opinion that the finding of facts based on the evidence before us is correct, and is within our ruling as declared in Hunter v. Moore, 202 S.W. 544, and Buford v. Moore, 177 S.W. l.c. 869, and following.

VII. Appellants claim to own the undivided half interest in the land aforesaid, awarded by the trial court to plaintiffs, under and by virtue of a warranty deed dated November 27, 1894, purporting to have been executed by Walker Phelan, as alleged attorney in fact of Anna C. Jeffers, and S.P. Jeffers,Power of her husband. No power of attorney was shown to haveAttorney. been legally executed by Anna C. Jeffers, nor was any such instrument offered in evidence. The defendant Corpman was an incompetent witness as to any alleged conversations with Mrs. Anna C. Jeffers, who was dead at the time of trial. [Sec. 6354, R.S. 1919; Edmonds v. Scharff, 279 Mo. l.c. 84-5; Lieber v. Lieber, 239 Mo. 1; Leavea v. Railroad,266 Mo. 151.] Section 2205, Revised Statutes 1919, provides for the recording of powers of attorney and, hence, the court was justified in finding from the evidence in the case, that no such document was shown by legal evidence to have been executed by Mrs. Anna C. Jeffers to Walter Phelan. [Section 2174, R.S. 1919.]

(a) It is contended by appellants that the deed made by Walter Phelan, as alleged attorney in fact of Anna C. Jeffers and husband, to defendant Corpman, was admissible as an ancient document, from which it might be presumed that the recitals therein as to the powers conferred upon said Walter Phelan as attorney in fact are true, etc. This contention isAncient without merit. [Laclede Land Imp. Co. v. Goodno,Document. 181 S.W. l.c. 412-13-14.] It appears from the evidence, that on July 31, 1894, Anna C. Jeffers and her husband conveyed by quit-claim deed to said Walter Phelan, the undivided one-half of the land in question. In the deed which Walter Phelan executed to defendant Corpman on November 27, 1894, he conveyed his own undivided one-half of said land and attempted to pass the title of Anna C. Jeffers to defendant Corpman, for the other half. We hold, that the trial court was right, in decreeing to defendants the title to the half interest in said land which Walter Phelan individually conveyed by the above deed. We furthermore hold that the trial court ruled properly in holding that the deed made by said Walter Phelan to defendant Corpman only conveyed the half interest in said land which he had purchased from Anna C. Jeffers on July 31, 1894.

VIII. It was properly held by the trial court that when Walter Phelan received from Anna C. Jeffers and husband a quit-claim deed on July 31, 1894, for the undivided one-half interest in the land aforesaid, he thereby became a tenant in commonTenants with said Anna C. Jeffers to the forty acres inin Common. controversy. When Walter Phelan conveyed his undivided one-half interest in said land to defendant Corpman on November 27, 1894, it made said Corpman a tenant in common with said Anna C. Jeffers, as to the forty acres in question. The court accordingly, in behalf of plaintiffs, gave instruction numbered four, which reads as follows:

"The court declares the law to be that under the Walter Phelan deed shown in evidence defendants acquired an undivided one-half interest in the land in suit, and if they thereafter took possession of said land or paid taxes thereon they did so as co-tenants of plaintiffs and for their use and benefit as co-tenants with defendants, unless the court further finds that such possession was so taken and held under such circumstances as amounted in law to an ouster of plaintiffs from their rights in said land."

We are of the opinion that the court not only properly declared the law in respect to the above instruction (except that the parties should have been designated as tenants in common), but properly found from the evidence that defendants never acquired, by adverse possession or limitation, title to any part of the land in controversy.

IX. After carefully reading the record, and appellants brief, we have reached the conclusion that the trial court committed no error of which appellants can legally complain. We hold that the judgment below, as to both the law and facts, is supported by substantial evidence, and is accordingly affirmed. Higbee, C., concurs.