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the circuit court; the petition alleging that, it-for the whole property.' And we talked on Stephen Perkins was the owner of said lots a little bit, and he said to Mr. Miller that we in his lifetime, and that he died intestate, recollection is that Mr. Miller decided that 20

can get along all right with 20 feet, and my and that the plaintiffs therein, as his widow feet would be sufficient, and that was the final and heirs were the owners of said lots. It windup of it. I don't remember just exactly then contains the following:

all that was said it has been a good while ago, "That heretofore, to wit, on the

but that was the final windup, and he decided August, 1897, the above-named defendants did Q. Just tell what was said. A. They said they

day of Mr. White: We object to what was decided. wrongfully take and appropriate for the pur; would take the 20 feet, and agreed on the price. pose of a railroad right of way a strip of land Q. What were they to pay for it? A. $600, and running diagonally through said lots to the ex- pay the court costs. tent of 10 feet on each side of the center lipe claim to own

Q. Did they at any time of the railroad roadbed, as the same is now lo- Mr. White: I make the same objection as made

or occupy more than 20 feet? cated and situated on said lots; that said de to the principal question, and for the same reafendants took and appropriated said strip of land as aforesaid without any condemnation pro- and action of the court the defendant then and

(Objection overruled. To which ruling ceedings, or other lawful right to do so, and there at the time duly excepted and still exwithout the consent of the plaintiffs, or either cept.) A. No, sir; they never claimed any. of them, and did so without paying any compen Q. Did they at any time afterwards, up to the sation whatsoever; and that no

compensation time you sold it, make any claim to more than has ever been paid to the plaintiffs, or either 20 feet? A. No, sir.” of them, on account of the wrongful taking of said strip of ground for public use as afore- On cross-examination the following occursaid."

red: The petition then offered to convey the "Q. The suit bad already been filed? A. It title to the right of way to defendant, and had been filed virtually by agreement between prayed for $5,000 as damages for the appro- need. It was a friendly suit.”

the parties that that was all that they would priation.

In reference to that matter Mr. Lucas tesOn October 12, 1901, judgment was ren

tified: dered in that case as follows:

"Q. You bought a right of way from the Per“Now, on this day, the above-entitled cause kins in those negotiations? A. Did what? Q. coming on regularly to be heard, and the de- Bought a right of way? A. No, sir; I bought fendant, Kansas City & Westport Belt Railway peace. I had a right of way, but I bought Company and defendants having filed their answer herein, and the plaintiffs appearing by N. peace ; just as I have done for 20 years in rail

road litigation. They claimed adversely, and I F. Heitman, their attorney, and the defendants purchased my peace in the matter of these peoappearing by Johnson & Lucas, their attorneys, ple. Q. You purchased what they were claimand the parties duly waived a jury in open ing? Ä. I purchased whatever rights they were court, and the court, having heard and duly con: asserting there at that time. Q. Did you asof counsel, finds the issues in favor of the plain- sert at that time any rights to any more than tiff and assesses plaintiff's damages at the sum made any statement about any rights more than

you purchased ? A. I don't recall whether I of $600.

I purchased or not; for I don't recall the con"Wherefore, it is considered, ordered, and ad- versation. I have got only a faint impression judged by the court that plaintiffs have and re: in my mind that somebody introduced me to cover of and from the defendants the sum of Mr. Perkins, and I don't recall now whether I $600, and costs of suit, on account of the appro- ever saw him more than that once.

Q. The priation of a right of way for railroad purpos right of way you did pay for was 10 feet on es over the premises described in plaintiff's peti- each side of the center line? A. I would not tion, situate in Jackson county, Mo., to wit, be able to tell you that. The pleadings would lots' 101 and 104 in Campbell's addition to the show whatever that was. town of Westport, now a part of Kansas City, ter of the width of the right of way taken up

Q. Wasn't the matMo., across the above-described tract of land as at that time by you and Mr. Heitman and Mr. said right of way is now located thereon; said Perkins, and didn't they offer you whatever you appropriation of said right of way having taken place without the payment of just compensation, all you needed was what your track occupied,

were willing to pay for, and you said that was as alleged in plaintiff's petition. And defend- and that was all you wanted? A. I would be ants did in open court pay to the plaintiffs the unable to answer about that conversation, be damages as aforesaid, and the plaintiffs acknowledge satisfaction of the judgment afore- cause my mind is indistinct about it. If some

circumstance was recalled I might remember said.

"Wherefore, it is ordered, adjudged, and de- what the conversation was, but I will say in a creed by the court that the title to said premises general way, of course, I wouldn't attempt to be fully vested in the above-named defendant conclude my company's right by any negotiaKansas City & Westport Belt Railway Com- tions for any less from Mr. Perkins, who was

insisting he had a right there. I don't remempany free and clear from any and all claims."

ber what the defense was that I believed I had; With reference to that suit, John S. Per- whether I claimed to have a deed or by virtue kins for plaintiff testified as to conversations of condemnation. If it is important, I can re

fresh my recollection by the files in the Perbetween him and his counsel, Mr. Heitman, kins Case, but, in any event, whatever I did on one side, and Mr. Lucas, counsel for de- there was simply to buy peace.' fendant, and Mr. Miller, its president, on

In 1904 the defendant again used 25 feet the other side. He testified as follows: on each side of the center of its road to pile

"Q. State what was said by Mr. Lucas and material and to get dirt for the repair of its Mr. Miller with reference to the right of way track. On March 5, 1905, plaintiff obtained A. Of course, I was introduced first, and Mr. Heitman said we came over in regard to that a warranty deed from the widow and heirs of matter, and I don't remember all that was said; Stephen Perkins for the lots subject to a right bat Mr. Lucas says, 'We are entitled to 50 feet.' of way for defendant's road 10 feet wide on I says, “Well, if you take 50 feet you ruin the balance of our lot; it does not leave us any each side of the center of its track. The

ance of said lots until just before this suit, county" as such trustee. That section is now was brought, when a fence was put up along 11920, Rev. Stat. 1909. In Martin v. Paxson, the boundaries of the 20-foot strip. Defend- | 66 Mo. loc. cit. 265, it was said: ant tore that fence down and put up one "No notice of such application is necessary; along the outer boundaries of the land in none is required by the statute. The proceeding controversy.

is ex parte, and upon affidavit only; and, by

the provisions of the statute in force at the time John H. Lucas and Halbert H. McCluer, the substitution in the present case was made, both of Kansas City, for appellant. McCune, the appointment to be made by the court, as,

no question could arise as to the propriety of Harding, Brown & Murphy and Spencer F. under that statute, no other person than the Harris, all of Kansas City, for respondent. sheriff of the county could be appointed."

In Thompson v. Foerstel, 10 App. 290, the ROY, C. (after stating the facts as above). appointment of a person other than the sher[1] I. Objections were made to several of the iff was upheld. In Hitch v. Stonebraker, 125 deeds introduced in evidence by plaintiff in Mo, loc. cit. 138, 28 S. W. 443, this court said the chain of title to the Cases. We shall not that such statute was in derogation of the consider the merits of those objections. The common law, and should be strictly conCases are the common source of title. To strued. In Tatum v. Holliday, 59 Mo. 422, constitute a common source of title, it is and in State ex rel. v. Griffith, 63 Mo. 515, not necessary that both parties should have it was held that a sheriff, acting under such a good title from the common source. That statutory appointment, does so officially. His would be impossible. All that is necessary bond as such sheriff secures his faithful disis that both parties claim under the common charge of the duties of such trustee. We are source. The deed for the right of way from not deciding as to whether the court can apthe Cases made in 1873 described the lots as point "some other suitable person," but we Nos. 102, 103, 104, and 178. There was no do hold that the appointment of the sheriff lot numbered 178. Immediately after the on such ex parte application is valid. making of that deed the road was graded [4] IV. The deed by the assignee in bankthrough lots 101, 102, 103, and 104. There is ruptcy and the substitute trustee under the no doubt that lot 101 was intended instead deed of trust was withheld from record from of lot 178. Possession for the purpose of its date, June 18, 1877 until June 22, 1891. grading the track was undoubtedly taken un- Appellant's brief contains the following: der the Cases and because of that deed for

“In the time intervening the Kansas City & the right of way. That makes a common

Southeastern Railway Company purchased the source of title which cannot be impeached and expended a large sum of money in so doing,

property, took possession, completed the road, by defendant except by showing a title su- and had operated the road for about four years. perior to that of the common source.

Miller Respondent's grantor, having with held his deed v. Hardin, 64 Mo. 545; Feller v. Lee, 225 Mo. purchase and improvement of the property by

from record and stood by and witnessed the 319, 124 S. W. 1129.

appellant's grantor, cannot now make claim [2] II. Appellants insist that the deed against appellant." made jointly by the assignee in bankruptcy When the Kansas City & Southeastern got and by the substituted trustee under the deed its deed to the road on January 28, 1887, of trust to Stephen Perkins was improperly these lots, including the right of way, were admitted in evidence. The objection to the inclosed with a fence, and were in the possesdeed was that it was “incompetent, irrelevant, sion of Stephen Perkins. and immaterial, because it is not shown that "He who buys a piece of property in the open the parties had any power to make the deed." and visible possession of a third person is The deed recites that it was sold under an chargeable with notice of the title and right of

that person in the premises." Wiggenhorn v. order of the court in bankruptcy and under Daniels, 149 Mo. loc. cit. 165, 50 S. W. SOS; the provisions of the deed of trust. It also Squires v. Kimball, 208 Mo. loc. cit. 119, 106 recites that the sale was approved by the S. W. 502. court. There was no objection on the ground [5] The defendant and all those under that the orders of the court were not shown whom it claims were at all times affected in evidence. We hold that the objection was with constructive notice by the record that properly overruled.

the legal title to the lots was outstanding in [3] III. The fact that the sheriff was ap- the trustee under the deed of trust in which pointed as a substitute trustee under the deed Doggett was named as trustee. As between of trust on an ex parte application of the the trustee and Stephen Perkins that legal beneficiary in the deed of trust does not in- title passed by the foreclosure sale. The validate such appointment.

purchase of the equity of redemption after Sections 1 and 2, Rev. Stat. 1855, pp. 1554, the foreclosure and before the recording of 1555, provide for the appointment of the the foreclosure deed without notice of such sheriff as such substitute trustee on the ap- foreclosure to the purchaser of the equity plication of the beneficiary in a deed of trust. would not have the effect of entirely avoidBy the act of February 2, 1872 (Laws 1872, ing that sale as between the purchaser of the p. 67, § 1), it was provided that on such ap- equity and the purchaser under the foreplication the court should appoint "the sher-closure. At most, such failure to record iff or

some other suitable person of the would only let in the purchaser of the equity

to redeem the land from the deed of trust. So far as the subject-matter is concerned in We are frank to say that we have found no another suit, the parties to the former suit case squarely in point. But it has been held and their privies are concluded as to all matthat, where the foreclosure sale is irregular, ters which were, or which might have been, and not void, such irregularity can only be submitted to the court for its consideration taken advantage of in an action to redeem. on the issues in the first case. Donnell v. Adams v. Carpenter, 187 Mo. 613, 86 S. W. Wright, 147 Mo. loc. cit. 647, 49 S. W. 874; 445. In such action to redeem the plaintiff Hamilton v. McLean, 169 Mo. loc. cit. 73, 68 herein would be in the position of holding S. W. 930. the legal title, which was formerly in the [9] The court adjudged in the Perkins Case trustee.

that the deeds under which defendant claims [6] V. We thus find, as a result of the fore- did not constitute title to the 20-foot right of going conclusions, that the record title to the way. That judgment itself decreed the title land in controversy is in the plaintiff, and to that strip to defendant in consideration of the question remains as to whether defend the $600 damages adjudged to the plaintiffs ant has acquired title by adverse possession. therein. Since that decree defendant has The evidence does not show at what time in not held that right of way under any color the year 1887 the track was constructed of title, but under an actual title; i. e., that across the lots. On August 30, 1897, the judgment. The defendant certainly does not Perkins suit against this defendant was in- hold actual adverse possession of the 20-foot stituted. It does not appear that ten years strip under color of title to the whole 50 had intervened since the track was construct- feet. In Crispen v. Hannavan, 50 Mo. loc. ed. The witnesses Heitman and John S. Per-cit. 544, it was said: kins for plaintiff testified that such suit was

"Ordinarily the possession of one who does filed under an arrangement by which it was land in actual occupancy. The owner, who holds

not hold the true title can extend only to the agreed that 20 feet was all defendant wanted constructive possession of all lands not actually for its right of way. Mr. Lucas, witness for occupied by others, cannot be disseised by a defevdant, disclaimed being able to remem- | In addition to the actual occupancy of a part

mere claim. There must be something more. ber what was said in that conversation. We the open, notorious, and continuous possession are justified in finding that such suit was as owner-there must be a claim to the whole, brought under such agreement. Such being by the same right under which the part actually the case, the defendant was not on August fide and evidenced by some paper or proceeding

occupied is held, and such claim must be bona 30, 1897, asserting any claim to the land in or relation that makes the claimant the apparcontroversy, but had yielded such claim. It ent owner of the whole. Fugate v. Pierce, 49 bad not prior to that time acquired title by Mo. 441." adverse possession, because there is a lack [10] After the decree in the Perkins Case of evidence to show that ten years had then the plaintiff's deeds did not constitute color expired since the track was built. One who of title to the land in controversy. A claim asserts title by adverse possession has the of right under color of title includes good burden of proving it. Hulsey v. Wood, 55 faith, and good faith is oyed when the Mo. 252.

color of title iş adjudged worthless as be[7] VI. Defendant having on August 30, tween the parties. Scholl v. Coal Co., 139 1897, ceased to make any claim to the land in Ill. 21, 28 N. E. 748; Hintrager v. Smith, 89 controversy, whatever right it may have by Iowa, 270, 56 N. W. 456. adverse possession must have accrued since [11] Appellant claims that, under the authat date. The possession under claim of thority of Hargis v. Railroad, 100 Mo. 210, right must have been continuous. Possession 13 S. W. 680, it will be presumed that deunder a claim of right since 1897 cannot be fendant's possession extended to the full tacked onto such possession under claim of statutory width of 100 feet. That case says right prior to 1897 because of the break in that such is the presumption where there is the claim.

nothing appearing to the contrary. In this We therefore inquire whether, since 1897, case defendant does not even claim 100 feet, the defendant has had the continuous ad- and its actual possession is confined to the verse possession of the land in dispute under 20-foot strip decreed to it by the court. It a claim of right.

has no color of title outside the 20-foot strip. [8] The judgment in the Perkins Case is There are numerous other questions raised res judicata against the defendant on the in the briefs of counsel, but the propositions proposition that defendant was not, at the above announced are decisive of the matters date of the institution of that suit, the owner

involved. of the 20-foot strip either by paper title or by

The judgment is affirmed. adverse possession. The evidence in this case does not show whether the deeds in de WILLIAMS, C., concurs. fendant's chain of title were in evidence in

They were proper evidence, and PER CURIAM. The foregoing opinion of might have been introduced in that case to ROY, C., is adopted as the opinion of the

that case.

By her separate amended answer and crossNELSON V. ALPORT et al. (No. 16481.) bill, defendant Lena Alport in substance al(Supreme Court of Missouri, Division No. 2. | leged: July 14, 1914.)

(1) That on June 5, 1908, she was the own1. DEEDS ($ 211*)—SETTING ASIDE-ACTIONS-er of the above-mentioned real estate, and EVIDENCE-SUFFICIENCY.

on that day signed and delivered a contract In a suit to set aside a conveyance by a by which she agreed to sell said real estate married woman, a finding that she was not in to defendant Torrey H. Thompson for the duced to enter into the contract for the sale of her property by fraudulent misrepresentations sum of $20,000, $1,000 of which was recited in held not contrary to the weight of the evidence. said contract to have been deposited with H.

[Ed. Note.-For other cases, see Deeds, Cent. R. Ennis & Co. (as agents of defendant) to be Dig. $8 637–647; Dec. Dig. § 211.*]

applied on the purchase price, $14,000 in cash 2. DEEDS ($ 211*)-ACTIONS–EVIDENCE. upon the delivering of a general warranty

In a suit by 'a married woman to set aside deed to said property. Said property to be a conveyance of her separate property, evidence held insufficient to show that the conveyance conveyed subject to a deed of trust which was made as a result of her husband's coercion was then on the property, amounting to the and the fraud of the purchaser's agent.

sum of $5,000, and also subject to state and [Ed. Note.-For other cases, see Deeds, Cent. county taxes. That said contract further Dig. $$ 637–647; Dec. Dig. § 211.*]

provided that defendant might remain in pos3. ACKNOWLEDGMENT (8 62*)--MARRIED W0-session for two months from the date of the MEN-ACTIONS-EVIDENCE-SUFFICIENCY.

In a suit where a married woman sought to delivery of the deed at a monthly rental set aside a deed on the ground that the acknowl- of $25. edginent was not her free act and deed, a decree (2) That the making of said contract was denying her claim held not contrary to the procured by fraud on the part of plaintiff weight of the evidence.

[Ed. Note.-For other cases, see Acknowledg- and defendants Ennis and Thompson in this: ment, Cent. Dig. 88 345-347; Dec. Dig. 8 62.*] That said Ennis was engaged in the real

estate business in Kansas City under the Appeal from Circuit Court, Jackson Coun- name of H. R. Ennis & Co., and that said ty; W..0. Thomas, Judge.

company assumed to act as agents of this Suit by William R. Nelson against Bernard defendant, and accepted the deposit of $1,000 Alport and Lena Alport, who cross-complains. on the purchase price on behalf of this deFrom a judgment for plaintiff, the last-named fendant, when the said Ennis was in fact defendant appeals. Affirmed.

the agent of the plaintiff for the purpose of This suit was originally instituted by the purchasing the above-described property. plaintiff filing in the circuit court of Jack. That said Thompson was associated with de son county, Mo., his petition in ejectment fendant Ennis, and aided Ennis in procuring against Lena Alport and her husband, Ber- said contract. That defendant Ennis connard Alport, to recover the south one-half cealed that he was the agent of plaintiff, and of lot 383, block 29, in McGee's addition to made defendant an offer of $20,000 for the Kansas City, Mo.; the property was known property as coming from the defendant as No. 1731 Grand avenue, Kansas City, Mo. Thompson. That defendant refused to acDefendants filed answer, asking for affirma- cept said offer, but offered to sell the same tive equitable relief. It appears that some for $25,000. That said Ennis, in order to detime after the suit was originally instituted ceive and defraud said defendant, Lena Alplaintiff instituted in a justice of the peace port, represented that if she would sell her court in Kansas City a suit in unlawful de- said property for the sum of $20,000, he, the tainer, to recover from the defendants the said Ennis, would cause to be sold to her possession of the same property. Thereafter the south half of lot 377 in McGee's addition plaintiff, in attempting to dispose of the case to Kansas City, Mo., known as 1707 Grand in the circuit court, dismissed his petition, avenue, for the sum of $18,000. That the but the court, over the objection of plaintiff, premises numbered 1707 Grand avenue were refused to dismiss the answer of defendant, in the same block as defendant's above-deon the ground that it asked for affirmative scribed property, and was of the same dimenrelief. Thereafter plaintiff filed a reply to sions as defendant's property, and the imthe amended answer of defendants. Later provements thereon were as good or better defendant Lena Alport filed her separate than those upon defendant's lot. That thereamended answer and cross-bill, undertaking upon said Ennis prepared and presented to to make H. R. Ennis and one T. H. Thompson her and her husband for their signature the defendants in the cause. Unsuccessful mo- written contract for the sale of defendant's tions were made by the plaintiff and defend- property as above mentioned. That defendants Ennis and Thompson to strike the cross- ant and her said husband were unable to read bill from the files. Later plaintiff filed a or write in the English language, and that reply to the separate amended answer of the defendant relied upon the honesty and good defendant Lena Alport, and it was upon the faith of defendant Ennis, and signed the issues thus raised by the answer of defend-above-mentioned contract by making her ant Lena Alport and plaintiff's reply thereto mark thereon, believing that it was a proper that the trial was had in the circuit court. I and necessary step for carrying out and ef

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Ludexes

fecting the exchange of properties in accord, the sum of $15,000 in cash, subject to said ance with the offer made to her by defendant mortgage of $5,000. Ennis. That after she and her husband had (2) That on the 24th day of June, 1908, signed the above-mentioned contract said En- defendant sold and conveyed said real estate nis refused to make a contract to sell the to said H. R. Ennis for the above-mentioned property at 1707 Grand avenue for the sum sum, and that said H. R. Ennis by warranty of $18,000. That said Ennis and Thompson deed conveyed said property to said plaintiff were the agents of the plaintiff, and that the herein at and for the same consideration. recital in said contract that H. R. Ennis & That plaintiff is now the owner in fee of Co. were the agents of defendant was false. said property. That immediately after plainThat the $1,000 deposit mentioned in said tiff purchased said property he rented said contract was never in fact made. That de premises to defendant and her husband at fendant never intended to make a contract of and for the sum of $25 a month, and that the above import and effect, but that her sig. said defendant occupied said premises as nature was obtained thereto by the fraud tenants of the plaintiff and paid rent thereand misrepresentations above mentioned, and for as such tenants up to and including for that reason the same ought to be set March 24, 1908, when defendant and her aside and held as fraudulent and void. husband refused to make further payments

(3) That afterwards, in order to make this of rent, and refused to give up possession defendant perform the fraudulent contract of said premises. above mentioned, said Ennis, with three oth- (3) That defendant and her said husband er persons, came to plaintiff's home and pre- have ever since kept and retained said sum sented to her a warranty deed for her sig- of $15,000, and have never made any lawful nature, which the defendant refused to sign. tender thereof to plaintiff herein. That prior That said Ennis told defendant that if she to the time defendant and her husband exrefused to execute the deed, he would have the ecuted the said deed they had full knowledge deed of trust on her property foreclosed and of all their alleged rights, if any they had, the property sold, so that the same would be to have said deed set aside, but never ascome wholly lost to the defendant. That serted said rights or any claim in that behalf he induced defendant's husband to join with until long after May 1, 1909, and that by him in endeavoring to force defendant to reason thereof they are estopped to assert execute said deed. That at said time defend any right to set aside said deeds. That deant was in a sick and weakened condition, fendant's claim is wrongful and malicious and unable to cope with said Ennis and oth- and without any foundation in fact, and er persons to protect her rights and to with prays that judgment be entered against the stand the threats and statements of said defendants, adjudging that they have no Ennis and her said husband, and that by right, title, or interest in or to said premreason of the same, she, jointly with her hus- ises, or to have said deeds set aside, and that band, executed said warranty deed, whereby judgment be entered that plaintiff has the she conveyed said property to said Ennis for right to the immediate possession of said the sum of $15,000 in cash, and subject to the premises, and that defendants be compelled said deed of trust for $5,000, but that the to surrender said premises to the plaintiff, same was not her free act and deed, and that and that plaintiff be allowed damages and, this defendant was coerced, overreached, and for such other relief as to the court may defrauded into executing said deed. That in seem meet and just in the premises. all the matters and things aforesaid Ennis Trial was had in the circuit court, resultwas the agent and acting for the plaintiff. ing in a judgment in favor of plaintiff and That at the time said deed was executed said against the defendants. The trial court Ennis paid to defendant's husband $15,000, found that on June 24, 1908, defendant and which sum defendant is ready and willing her said husband conveyed said property to to repay said Ennis or to the plaintiff, and H. R. Ennis for the sum of $20,000, $15,000 now offers to pay the same as the court may of which was paid in cash and the remaining adjudge, or to pay the same into this court $5,000 paid by the assumption on the part upon its decree setting aside said deed and of said Ennis of the $5,000 mortgage then excontract. That afterwards said Ennis con- isting on said property, and that on said date veyed said property by warranty deed to the said Ennis conveyed said property to said plaintiff herein.

plaintiff herein, and that plaintiff since that (4) The prayer of the answer was that the time has paid off said mortgage. The court above-mentioned contract and deeds be set further found that said Lena Alport signed aside, and that the title to said property be the deed to Ennis, and acknowledged the adjudged and decreed to be in this defendant, same as her free act and deed, and that no and for such further relief as may be just fraud was practiced on her by said Ennis or and equitable in the premises.

said plaintiff or his agents in securing her The reply contained, in substance, the fol- signature to the deed. The court further lowing allegations:

found that the plaintiff was the owner of (1) General denial, except that it admitted and entitled to the immediate possession of, that defendant and her husband conveyed said real estate; that defendants were not

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