Hayti Development Co. v. Clayton

*224 BLAIR, P. J. The petition contains two counts; one under Section 2535, Revised Statutes 1909, to quiet title, and one in ejectment. The land involved is the northeast quarter of the southwest quarter of Section 33, Township 19, Range 12, in Pemiscot County. The answer admits that respondents claim to own the land; avers they are and have been in possession at all times mentioned in the petition; avers appellant has no title, but that respondents own the land in fee simple, and prays that the title be ascertained and determined. A second count sets up the ten-year Statute of Limitation, and a third count pleads laches ■ and estoppel and prays a decree of title in respondents and for general relief. The court found the issues for respondents, and adjudged that appellant had no title or interest in the land, and that respondents are the owners in fee thereof. This appeal was taken from' that judgement. Other facts necessary to a determination of the case appear in connection with the discussion of the questions to which they are relevant. 1 Section ?50der I. Appellant attempted to show record title in itself. To this end it offered evidence which it contends proves that Tobias P. Bentley secured the record title November 17, 1857, by means of a warranty deed to him from John S. "Wheeler and wife. Appellant claims, through mesne conveyances, under a trustee’s deed under sale under a trust deed executed by Laura M' 0ates’ May 15> 1907. So far as concerns the question now being discussed, the record title of Laura M. Oates,'and, therefore, the record title of appellant, depends upon a decree in a suit to quiet title which Laura M. Oates instituted April 6, 1907, against the unknown heirs and devisees of Tobias P. Bentley. The allegations of the petition in that suit brought it within Section 650, Revised Statutes 1899, as it then stood. That .section authorized suits “to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of *225 the parties severally in and to such real property. ’ ’ The prayer of the petition in that case was that “the court will ascertain and determine the estate, title and interest of this plaintiff and said unknown defendants in and to said real estate, and that the court will define and adjudge and decree that plaintiff is the owner of said real estate in fee simple, absolute, and that said defendants, nor none of them, have no right, title, claim or interest in or to the same or any part thereof, and for such other,” etc. The order of publication, whereby service was had upon the unknown heirs and devisees of Tobias P. Bently, was peculiar. It notified them that the “object and general nature” of the suit was “to enforce and establish a lawful right, claim and demand to and against certain real estate, property within the jurisdiction of said court, to-wit, an action to try, ascertain and determine the respective parties plaintiff and defendants herein and to the following described,” etc. Eespondents in this case do not claim under the heirs and devisees of Bentley, nor under Laura M. Oates. The judgment in Oates v. The Unknown Heirs and Devisees of Tobias P. Bentley did not transfer the Bentley title to Laura M. Oates. It could not do so. The statute (Sec. 650, E. S. 18091), authorized no such relief; the petition prayed for no such relief, and the notice of publication did not advise defendants that a decree, having any such effect was being sought. That decree, if otherwise valid, debarred and estopped the unknown heirs and devisees of Bentley and those in privity and claiming under them by subsequent deed or right, from setting up, as against Laura M. Oates and those claiming under her, the title in judgment in that suit. It did not and could not affect the right of one neither party nor privy. There were no special equities authorizing either, an order for a conveyance or a decree revesting" title, or the like. It was a plain suit under the then statute, not to secure the Bentley title, but to secure a decree that the Bentleys had no title and that Laura M. Oates already had full title. In Lockwood v. Meade, 71 Kan. 1. c. 741, answering a like contention, the *226 court said: “But an ordinary decree quieting title against a defendant does not add his claim to that already possessed by the plaintiff. It effects no affirmative increase in the plaintiff’s right. . It strengthens his title only in that it cuts off a source of attack. It brings to him no new and independent right which he may assert against, a stranger to the suit. It adjudges that the defendant has no claim to the property— not that a claim which he has must be deemed to- be transferred to the plaintiff. [Weed Sewing-machine Co. v. Baker, 40 Fed. 56; Harrigan v. Mowry, 84 Cal. 456.]” Other decisions are to the same effect. [Dunavant v. Cooperage Co., 188 Mo. App. l. c. 90, citing 32 Cyc. 1384; Vandergrift v. Shortridge, 181 Ala. l. c. 278; Elwert v. Reid, 70 Ore. 318.] Particularly is this true of a suit to quiet title under Section 650, Revised Statutes, 1899, since “there is no authority in that section for the court to do more than to ascertain and determine, define and adjudge the title, interest and estate of the parties severally in and to such real estate.” [Powell v. Crow, 204 Mo. l. c. 486.] It has -been held (Wheeler v. Ballard, 91 Kan. l. c. 361) tlia-t as between the parties the difference between a decree destroying a defendant’s title for plaintiff’s-benefit and one transferring defendant’s title to plaintiff is of no considerable importance; but the court was careful to point out, citing the Lockwood-Meade case, that it spoke only of a case in which ‘‘ other parties are not involved.” In this case respondents come within the term “other parties” as used in' that decision. Therefore, though it be conceded Bentley had the record title from Wheeler, appellant is not, on this phase of the case, aided thereby, since it has proved conclusively it has not secured the Bentley title; has shown it has no record title; and it makes no other claim of record title’ as we read the brief. *227 Possession *226 II. Appellant claims title by adverse possession. • It offered in evidence certain deeds which it relied upon as a chain constituting color of title. The first of these is dated in 188-3. This is a sheriff’s deed to Schult. *227 Next, a deed from Schult and wife to E. Gt Rankin, dated January 1, 1884; deed from Rankin to T. P. -®°^nS011> dated April 8, 1884; deed from T. P. 'Robinson to Schult, April 17, 1885; deed from Schult and wife to William Tarkington, dated November 3, 1897, and a deed from William Tarkington to Laura M. Oates, dated October 23,1905. Respondents and their grantors have been in possession since the fall of 1907. This suit was brought in 1914. (a) As already pointed out, the Bentley decree, relied upon also in this connection, does not affect respondents. They were not parties, do not claim under any of the parties, and their interest was not in litigation or affected in any way. (b) The oral evidence was undeniably conflicting upon the question of adverse possession of appellant’s grantors. It is indisputable that appellant’s grantors never had actual adverse possession of the requisite character of the land in suit for any ten-year period. Whether they used the property in such connection with other property of which they may have had such possession was in dispute. In such circumstances the finding of the trial court for respondents settles that question against appellant. Purchase from Tenant. III. It is argued respondents went into possession in 1907 under Laura M. Oates. Appellant’s evidence tends to show one George was the tenant of Laura M. Oates and sold out to Clayton, It is claimed Clayton thereby became the tenant of Oates and his possession was and is, therefore, not adverse. Respondents ’ evidence tended to disprove the contention of appellant. The finding of the court settled the conflict against appellant, and binds u,s. *228 Laches, *227 IV. We agree with the appellant that the defense of laches was not available to respondents in this case (Chilton v. Nickey, 261 Mo. l. c. 243) and that appellant *228 was not called upon to go back to the common source of title. In view of tbe general finding of tlie court, and tbe absence of instructions asked or given, tbe questions already discussed dispose of tbe case and render unimportant tbe matters just mentioned. There is a correct legal theory, supported by substantial evidence, which justifies tbe finding against appellant’s claim of title. No question concerning tbe admission or rejection of evidence or other procedural errors are urged in this court. This disposes of all the questions presented by the brief. Tbe judgment is affirmed. All concur.