City of St. Joseph ex rel. Forsee v. Baker

ELLISON, J. A special tax bill for building a sewer was issued against certain real property in the city of St. Joseph. It was afterwards assigned to Mrs. Oorby, plaintiff being her administratrix. Two days before the limitation period of two years for bringing actions on such bills expired, viz., October 20, 1894, suit was brought against defendant Baker as the owner of the property. Afterwards, on the third day- of January, 1899, plaintiff filed an amended petition making defendant Shull and husband and the John Deere Plow Co. defendants in the cause. Judgment was rendered for defendants and plaintiff has appealed. At the trial, the court admitted in evidence the testimony of defendants Shull and Baker. The other party being an executor, defendants should not have been permitted to testify. R. S. 1889, sec. 8918. Defendants seek to avoid the error by the contention that no sufficient objection was made to the testimony when offered. It must be conceded that the various objections made from time to time were not as clear as they should have been. But considering them all, and the fact that the disability on defendants was a matter shown by the parties to the record, we think it apparent that plaintiff did not intend to waive the right to exclude them and that the different objections made will be considered, under the circumstances, as sufficiently specific. Defendant, Mrs. Shull, for the purpose of showing that she was the owner of the property at the time of the institu [315] tion of the suit against Baker alone, introduced a deed from Baker and wife to her for the property in controversy, as well as two other pieces of realty. It seems that this deed was executed by Baker on December 17, 1890, and only conveyed the property in dispute. That it was delivered to Mrs. Shull but was not acknowledged or recorded. She kept it until December, 1895, when Baker, desiring to deed her an additional tract, got from her the old unrecorded and unacknowledged deed, changed the date, “1890” to 1895 and' added the additional property in the description clause. The deed was again delivered to her and was afterwards, in June, 1896, acknowledged, and was recorded August 26, 1896. Confining ourselves to the matter of this deed, we are of the opinion that, in itself, it can only be held to be an effective conveyance from December 17, 1895, the date it purports to bear. It. is a single instrument and we are not aware of any reason or authority for holding that it may be shown by parol that it conveyed one part of the property therein described at one date and another part at a different date. If it was originally a deed to one part of the property and five years thereafter was delivered up to the grantor that he might insert additional property, re-date it and re-deliver it, these acts are tantamount to destroying the original deed by consent of parties and executing another without an intention of revesting the title. This, however, as we shall s&e further on, will not prevent Mrs. Shull from showing that she was the owner between 1890 and 1895, under a destroyed deed of which plaintiff had notice. So, therefore, if, in the question before us, we were confined to the effect of the deeds on the propriety of originally bringing the suit against Baker, we should hold it was properly brought, since he was the record owner when it was [316] begun. Vance v. Corrigan, 78 Mo. 94; State ex rel. Hunt v. Sack, 79 Mo. 661; Cowell v. Gray, 85 Mo. 169; Payne v. Lott, 90 Mo. 676; Evans v. Robberson, 92 Mo. 192; Troyer v. Wood, 96 Mo. 478; Allen v. Ray, 96 Mo. 542; Crane v. Dameron, 98 Mo. 567. Leaving the deed of 1895 out of consideration, there was other evidence tending to show that Mrs. Shull was in reality the owner and in possession of the property and that the plaintiff’s testator had notice of such ownership and possession when she instituted the action. If such was the fact the suit should have been brought against Mrs. Shull, notwithstanding that Baker was the record owner. Authorities, supra. If the suit should have been brought against Mrs. Shull, it will not avail plaintiff that it was brought against Baker within the period of limitation and Mrs. Shull brought in by amendment a/ier that period had expired. Smith v. Barrett. 41 Mo. App. 460; Jaicks v. Sullivan, 128 Mo. 187: If at the time the suit was originally brought against Baker, Mrs. Shull was the owner by adverse possession she, and not Baker, was the party against whom the action should have been brought even though the record title was in Baker. Watt v. Donnell, 80 Mo. 195. But it is not pretended that at that time her possession had been of sufficient duration to make title by adverse possession. As there is to be a retrial it is proper that we should refer to another phase of the case. As has been already stated, Mrs. Shull’s original deed from Baker of December, 1890, was unrecorded. It nevertheless conveyed the title to her and if plaintiff had notice of such title it was sufficient to take from her the right to sue Baker as the record owner. This notice may be actual, or it may arise from notice of possession. Eor the law is that if one has notice of the actual [317] possession of land -which another has, it will be notice to him of that other’s title. Masterson v. Railway, 72 Mo. 342; Davis v. Briscoe, 81 Mo. 27; Freeman v. Moffitt, 119 Mo. 280. Bnt it is urged by plaintiff that Mrs. Shull is estopped to assert that she had any title between December, 1890, and December, 1895, under her deed from Baker, for the reason that at the last date she, as plaintiff contends, in effect, surrendered all claim under the deed as originally made by permitting it to be transformed into the deed of the last date. Plaintiff likens it to the voluntary destruction of a deed which operates by estoppel to revert title in the grantor. Winfrey v. Gallatin, 72 Mo. App. 191; Potter v. Adams, 125 Mo. 118. We are not inclined to adopt this view. We think there is no room here for the application of the principle of estoppel and that the facts of this case can not be likened to that where the voluntary destruction of a deed will revest title; for in the latter instance there must exist an intention to revest’ the title, while in this ease, as we have already stated, there was no such intention. The judgment will be reversed and the cause remanded. All concur.