Shaffer v. Detie

LAMM, J. Ejectment for the southeast quarter of the southwest quarter of section 17, township 21, range 13 in New Madrid county. Ouster laid as of January 1, 1901. Petition in common form. Detie is alleged to be in possession of the locus as tenant of his co-defendants, the DeLisles. By joint answer, Detie’s possession as tenant of the DeLisles is admitted, and an adverse; visible and continuous possession under claim of right and color of title, since 1878, is pleaded in the defendants and their grantors, thereby invoking the Statute of Limitations as a defense. By way of matter in pais, constituting an equitable defense and upon which affirmative equitable relief is prayed by defendants, it is further alleged in sub — 382 — stance that plaintiff’s claim is based on a deed from Newton Morehead — a minor son of Stephen Morehead, deceased. That Stephen Morehead was a son of J. C. Morehead. That Stephen sold said land to his father in the seventies and received the full purchase price from him and then and there put his said father in possession and that hy a chain of title, specifically pleaded in the answer, the ownership and possession of said premises had come down from said J. C. Morehead through mesne conveyances to the DeLisles. That the deed from Stephen to his father at the time the sale was consummated was either made and lost before record, or by neglect was not made at all, and relief is prayed that the title of Stephen Morehead be decreed to have passed by said sale from Stephen to J. C. Morehead and for such further relief a,s to the court may seem right and equitable. The answer also denied all the allegations of the petition not admitted. Issue was joined by reply to the new matter in the answer and the cause heard by the court, neither party requesting a jury on any issue. Plaintiff asked and was refused certain instructions and saved his exceptions. Plaintiff was given certain instructions and defendants asked none. By its decree the court found the facts specifically as alleged in the answer and on March 22, 1902, entered a decree in favor of defendants and granted the affirmative relief prayed by them. Two days after this decree was entered, to-wit, on March 24th, plaintiff filed a written request for a finding of facts which request was complied with and a finding made and filed which, in some particulars, is challenged here hy plaintiff. After an unavailing motion for a new trial, plaintiff perfected his appeal and the cause is now pending in this court on a complete manuscript transcript and a meager abstract of record furnished by appellant, which in set terms points us to the manuscript trans — 383 — cript for some of the record facts deemed important by him. Appellant’s abstract is supplemented by another furnished by respondents, equally scanty, and which also refers us to the same transcript for certain record facts. Of this condition of things, it may be said that while this court has been, of set purpose, conservative and bland in its interpretation and application of its printed rules, yet it is an unbending rule, the underlying wisdom of which cannot be gainsaid, that even in cases where a complete manuscript transcript is filed here, a printed, paged and indexed abstract must also be furnished us (and served on the respondent) setting “forth so much of the record as is necessary to a full understanding of all the questions presented to this court for decision.” [Rule 13.] The convenience of litigants and of the members of this court in the dispatch of business requires this to be done, and we have uniformly refused to go behind unchallenged abstracts and to manuscript transcripts to hunt, as with a lighted candle in hand, to see if peradventure we may spy out the facts and issues pressed upon us for consideration. Such seems the moral to be drawn (and needing heed by the profession) from the frequent dismissal of causes for failure to obey this rule. [Manuel v. Railroad, 186 Mo. 499; Whitehead v. Railroad, 176 Mo. 475; Ramsey v. Shannon, 140 Mo. 281; Halstead v. Stone, 147 Mo. 649; Ely v. Coontz, 167 Mo. 371.] It is true in this case respondents, as was their privilege, seem willing to forego their right to such abstract, but manifestly respondents, however suave, are not at liberty to forego or waive the right of this court to such abstract, and we will presume the printed abstracts import not only verity but contain all the verity needful to consider. Attending, then, alone to the printed abstracts, the case made on the facts is as follows: Stephen Morehead is conceded to be the common source of title and therefore no attention need be given to prior conveyances. — 384 — On behalf of appellant it was shown that Stephen Morehead died in 1887, divorced from his wife, also now dead. That they left surviving them three children, of whom an only son, Newton Morehead, is alive. Having made a prima facie showing of descent cast upon Newton Morehead, appellant next produced in evidence two deeds, one from Newton Morehead to Scobey dated August 25th, 1900, consideration thirty dollars, and one of the same date from said Scobey to appellant, consideration one hundred and twenty-five dollars, and rested. While appellant was putting in his case and when on the stand in person, it was sought by cross-examination to show by him that Newton Morehead was, a min- or and that appellant knew that fact at the time Scobey took a deed from the lad and at the time he accepted a conveyance from Scobey. To this line of cross-examination appellant’s counsel objected, because the minority of a grantor in a deed relied on as a link in a chain of title is no defense to an action of ejectment. The objection was overruled and appellant excepted. On further cross-examination it appeared that appellant knew young Morehead and was with Scobey on the day he got the deed from the boy for thirty dollars and that on the same day he, appellant, took a deed from Scobey for one hundred and twenty-five dollars. On this showing of facts respondents make a point to the effect that the deed from the minor son of Stephen Morehead to Scobey is void, ergo, they say, Scobey took nothing by that grant and could convey nothing to appellant. The record title relied on by respondents and produced in evidence, so far as material, is as follows: (1) a warranty deed from J. C. Morehead and wife to John McLure dated September 30, 1878, and duly recorded. This deed was objected to, as will presently appear. (2) Probate proceedings showing the land inventoried as the property of said McLure, proceedings for the — 385 — sale of the land as his property to pay debts, a report of sale with its approval, followed by a deed from the administrator of said McLure to Edward and Alphonso DeLisle, dated February 15, 1883, and duly recorded; (3) a deed from the DeLisles to one Souders dated December 15, 1886, and duly recorded; (4) a warranty deed from Souders back to the DeLisles dated July 22, 1892, duly recorded. This deed was also objected to, as will presently appear. Supplementing their documentary evidence, respondents proved by sundry witnesses that possession had been given under each one of these deeds and was held under a claim of ownership, adversely, visibly and continuously from 1878 down to the day of the trial by the DeLisles and the several grantors and grantees in conveyances in their chain of title. That by them improvements were made upon the land, that it was, during some of the time, partly under fence and, as we understand the record, at other times wholly under fence and that fifteen or twenty acres of it is in cultivation and that at least some of it has been in cultivation by said respective claimants continuously since 1878. To establish the equitable matter pleaded in the answer, respondents produced evidence tending to prove that Stephen Morehead and his wife separated, and thereupon Stephen sold the land to his father for a mule and a yoke of oxen, then and there received in hand, and, as a part of said sale, delivered possession of the land to his father, who thereafter held exclusive possession in person and by tenants, and who afterwards conveyed it to McLure by warranty deed as aforesaid. It was shown that Stephen Morehead lived for ten years or so after his father had sold this land to said McLure and transferred the possession to him, and testimony was educed tending to show that he knew his father, through tenants and in person, took possession of and dealt with it as owner, and knew that McLure and the purchasers at the administrator’s — 386 — sale took and held possession and exercised full domination over the land. No evidence was introduced on the part of respondents tending to show actual notice on the paid of appellant of the foregoing adverse possession or of any of the conveyances in respondents’ chain of title. In fact, appellant put himself in the situation of relying on the statement of Scobey (not shown) and did not examine the records. It was further testified to on ohe side, and denied on the other, that one Cartee, an uncle of Newton Morehead by marriage, during the time the DeLisles were in possession of the premises, and in the interest of young Morehead, talked to one of the respondents, Edward DeLisle, about the land and the claim of the boy and that DeLisle had said that Cartee should be, or requested that Cartee be, appointed guardian for the child and that he, DeLisle, “would settle the trouble." There was also evidence that at the time Souders claimed to own the land and was in possession and after he had fenced the farm, dug a well, put a house on it and “deadened off a good deal,” and before he transferred it back to the DeLisles, Stephen Morehead came to him and said the land was his. Whereat Souders claimed it and said he had bought it from the De-Lisles. It seems that Souders became uneasy over this verbal notice from Stephen Morehead and finally sold and conveyed the land, back to the DeLisles. This is all the evidence abstracted tending to show that Stephen Morehead ever laid any claim to this land after the year 1878. Any other record facts shown by the abstract, material to the proper disposition of the case, will appear in the course of the opinion. On such record, can and ought the decree be upheld? We think so, for the following reasons: 1. All questions raised by appellant relating to — 387 — the special finding of facts made and filed by the court may be excluded from our consideration, because a decree, once entered, is not subject to such illogical and belated impeachment as might arise from a finding of facts made subsequent thereto. It will be seen that the request for a finding of facts was delayed for two days after the decree was entered. Now, a judgment or decree is the conclusion of the court deduced from facts believed to be established and found to exist simultaneously with or before the decree or judgment —a product of the right application of correct legal principles to such facts — or, in other words, “a lawful sequence of the findings of law and fact as required by said section” (sec. 695, R. S. 1899); “and it necessarily follows,” said Gantt, J., speaking to the point, “that the request for and such findings must precede the judgment.” [Hamilton v. Armstrong, 120 Mo. l. c. 614; see, also, Loewen v. Forsee, 137 Mo. l. c. 38-9; Moberly v. Trenton, 181 Mo. l. c. 647; Butts v. Ruby, 85 Mo. App. 405; Bank v. Lumber Co., 102 Mo. App. 75.] Of Bank v. Lumber Co., it may be said, in passing, that the request for a finding of facts came after the judgment was announced, but the finding was made and filed on the same day the judgment was entered which, the court said, “in legal contemplation was at the rendition of judgment and in compliance with the purposes of the statute,” that is to say, the law will not split up a day; a day is in the eye of the law punctum temporis, a point of time, and the request and finding became, hence, in legal contemplation coincident with the delivery of judgment. However, the point in hand is in nowise decisive or controlling, because this is an equity case, as will presently be seen, and it has been held that section 695, supra, relating to special finding of facts by the trial court and on request, ‘ ‘ was not intended to have and did not have any effect on the power or duty of this court in equity cases.” [Fitzpatrick v. Weber, 168 — 388 — Mo. l. c. 572.] To the same effect is Blount v. Spratt, 113 Mo. 48. And because, further, the decree itself makes special findings of fact and that decree is here for our review. 2. Appellant contends that certain instructions were improperly refused him by the trial court. Is his contention tenable? We think not. The question of the correctness of the denied instructions must in this instance merge into a larger question demanding priority of consideration, viz., was appellant entitled to any instructions at all? If not, then a consideration of the form of the instructions disallowed is a mere will-o’-the-wisp dancing to one side and seducing the judicial mind afield from the path of legitimate inquiry. The code having allowed legal as well as equitable defenses to be interposed in a law case (R. S. 1899, sec. 605), the courts have established a working theory for such procedure by treating a suit at law in which an equitable defense is interposed, accompanied by a prayer for affirmative equitable relief, as a case in equity, triable to a chancellor. [Martin v. Turnbaugh, 153 Mo. 172; Wendover v. Baker, 121 Mo. 273; Kostuba v. Miller, 137 Mo. 161; Swope v. Weller, 119 Mo. 556.] The case at bar, then, became a case in equity, and it is elementary that instructions fill no office in the trial of an equity case and should not be given, or, if given, will be treated as of no account. [Wendover v. Baker, supra; McCollum v. Boughton, 132 Mo. 601; Hall v. Harris, 145 Mo. 614; Freeman v. Wilkerson, 50 Mo. 554.] Apellant’s contention that error may be assigned of the refusal of instructions is, therefore, disallowed and all questions predicated of such refusal are put away from us as by-matter. 3. Appellant assigns error on the admission of evidence tending to show that Newton Morehead was a minor at the date of his deed to Scobey. On the other hand respondents contend that it is apparent, from the facts proved, that an unfair advantage was taken of — 389 — the minor, a 15-year old hoy, in that his deed was made, in effect, for a nominal consideration, and that Scobey, having taken the minor’s title, turned instantly about and conveyed it for a much larger sum to appellant, and that this condition of things rendered the deed ipso facto void and inoperative as a grant. Now, it may be conceded to appellant that the deed of a minor is not void, but only voidable; for such is the law. The policy of the law is to make the conveyance of a minor effective or non-effective, as a minor grantor may elect to affirm or disaffirm when he attains the mature judgment of full age; and all persons, whether innocent purchasers or not, must deal with a minor’s title to real estate subject to this privilege, since his title passes lame and halt with an infirmity, of which the world at large at its peril must take notice. But this is a personal privilege to be exercised by him, or in case of his death, or being non compos, by his heirs or personal representatives; so that, the mantle of privilege to object to such deed does not fall upon the shoulders of strangers to the transaction, and least of all upon one holding and asserting a hostile title, as here. [Tyler on Inf. & Cov. (2 Ed.), sec. 191; 1 Dev. on Deeds (2 Ed.), sec. 86; Lawson on Con. (2 Ed.), sec. 129, and post; Ward v. Steamboat, 8 Mo. 358; Singer Mfg. Co. v. Lamb, 81 Mo. 221; Hill v. Taylor, 125 Mo. 331; Shipley v. Bunn, 125 Mo. 445.] Conceding, arguendo, that in an extreme case the doctrine of some of the earlier cases would be re-asserted and that a deed from an infant of tender years obtained from him through covin, or whereby he had parted with a valuable patrimony for a bagatelle, would, in his interest, be treáted as void and spewed out of the mouth of Justice, whenever and wherever presented, yet such case is not this case. Here enemies to the infant’s title seek to crawl under the cloak of the infant’s privilege to defeat his grant — a droll and intolerable situation — not only so, but respondeuts must — 390 — not Mow hot and Mow cold. Their theory is and was that the infant had no title, that he had lost his title by the acts of his ancestor and by the flux of time — in fine, that respondents held the title, at least in equity, and this theory the court, nisi, allowed. In such condition of things respondents should not be permited to suggest that the infant was defrauded or that his title passed for an inadequate consideration, since, if he have no title whatever, the consideration is immaterial and fraud impossible. Out of nothing, nothing can come. The objection of appellant to this line of inquiry should have been sustained, but the admission of the evidence was not prejudicial error. The deed from the infant to Scobey was not rejected as the result of the testimony, nor did the court in its decree adjudge that such deed was void, and thus allow the case to ride off on that theory; so that, appellant had full benefit of the conveyance and the preliminary inquiry permitted by the court worked appellant no ill in the end. 4. It is claimed by appellant in his assignment of errors, as follows: “The court erred in admitting evidence of witnesses Pikey, Huffstetter and Griffeth to impeach one A. J. Cartee, who had testified by deposition, as the witnesses had not known the said Cartee, for from fifteen to twenty years, and did not know him in the country in which he resided at the time of the trial, at the time the deposition was taken or even the community in which he resided for the last several years." And such point is pressed in apellant’s brief as reversible error. We have not been able to put our finger on any such matter preserved in appellant’s abstract. No such evidence and no objection as above are noted in his abstract of the evidence of Pikey and no evidence whatever of Huffstetter and Griffeth is abstracted. Turning to respondents’ abstract, we find no evidence abstracted from Huffstetter and Griffeth, but Pikey’s — 391 — testimony is given in a condensed form. An examination of this testimony and of the objections discloses no error in the admission of Pikey’s testimony, and, as said, we are precluded by our rules from exploring the manuscript transcript where the matter struck at may lie concealed. This assignment of error we are constrained also to rule against appellant, however meritorious as an academic proposition it may be. 5. Appellant further insists that the Souders deed of July 22, 1892, back to the DeLisles, should have been excluded. No ground appears in the abstract addressed to the trial court for the exclusion of this deed. The abstract shows as follows: “Objected to by plaintiff; reason to be inserted later.” The “reason . . . inserted later.” appears never to have been addressed to the trial court, but is inserted in an assignment of errors and a brief addressed alone to this court. This will not do. The trial court may not be convicted of error for not excluding a deed when no reason was given for its exclusion. The trial court is presumably a court of reason and as much entitled to the reasons for an objection as this court, and we ought not to consider grounds not presented and weighed and passed on there, and we have uniformly refused so to do. Appellant having postponed the insertion of reasons when and where the door was open for their insertion, his postponement must be taken as a sine die adjournment of the matter for all purposes of appellate practice. 6. The disposition of the foregoing contentions brings us to the marrow of the case as uncovered by the statement of facts. The decree, as we construe it, allowed (1) respondents’ defense of the Statute of Limitations, allowed (2) their defense of an equitable title superior to appellant’s naked legal title, and (3) went farther and found as follows: “The court further finds that all the right, title, claim and interest that Stephen W. Morehead once had in and to said lands passed from him and to J. C. Morehead, prior to the — 392 — 30th day of September, 1878, and that the defendants have acquired, by their purchase and those under whom they claim, all the right, title, claim and interest, which the said Stephen Morehead conveyed to his father, J. C. Morehead, and that plaintiff has no right, title, claim or interest in and to said lands.” The remaining contentions of appellant may be treated together and formulated, as we understand his brief, thus: (a) the deed from J. C. Morehead to McLure should have been excluded. It was objected to "because no title shown to be in J. C. Morehead," further amplified into the insistence that J. C. Morehead got no legal title by his transaction with his son and hence conveyed none to McLure. (b) Appellant was a subsequent innocent purchaser and having no actual notice of the bargain and sale and transfer of possession between J. C. Morehead and Stephen, that transaction, resting in parol, is inoperative as to him and the oral proof thereof, duly objected to, should have been excluded. (c) The Statute of Limitations has not run, because (1) the possession was not adverse and because (2) there was no color of title and the actual possession by claimants, the pedis possession was not of the whole tract. It may be conceded to appellant that the legal title to land in Missouri will not pass by parol. [Chapman v. Templeton, 53 Mo. 463.] But such concession does not help appellant because respondents do not rely on a legal title passing by the transaction between the Moreheads, father and son. Their contention is that when the father bargained for the land, paid for it, and under his purchase was put into and held possession, all of which abundantly appears from the evidence, an equitable title was created in the father and that the naked legal title left in Stephen Morehead was subordinate thereto and would not support ejectment, and such is the law. [Tibeau v. Tibeau, 19 Mo. 78; Sebree v. Patterson, 92 Mo. l. c. 458.] The most that can be — 393 — said for the legal title held by Stephen is that he was "seized to his father’s use. [Neef v. Seely, 49 Mo. 209; Ridgway v. Holliday, 59 Mo. 444.] The learned counsel of appellant confuses, we think, the law applicable to a plaintiff in an ejectment suit and the law applicable to the defendant. A plaintiff may not recover in ejectment, it being strictly a legal action, on an equitable title (Ables v. Webb, 186 Mo. l. c. 247), but on principle and authority the boot is on the other foot with defendant and he may defend on an equitable title. [See authorities aforesaid, and R. S. 1899, sec. 605.] But it is strenously urged by appellant that the proof showed no notice to him; and that he was an innocent purchaser. The record bears ear-marks indicate ing all the parties resided in New Madrid county and hence no question of non-residence is in the case. We assume appellant’s contention is based on the doctrine that under our registry acts a deed should be recorded in order to impart notice. But visible possession of real estate, with acts of dominating control, improvements, the continuous cultivation of the land, etc., are as potential in imparting notice of a claim of title as the record of a deed. One may not be allowed to blindfold himself to the visible indices of ownership, such as abound in this case, and say that he had no notice. To this effect has always been the law in Missouri. [Bartlett v. Glasscock, 4 Mo. 62; Davis v. Briscoe, 81 Mo. 27.] And such is the general doctrine. [2 Dev. on Deeds (2 Ed.), secs. 760 and 769.] The possession of J. C. Morehead was continuously perpetuated down to the day of trial under the chain of title relied upon by respondents, and it became either actual notice or put appellant on inquiry and he is impaled on either horn of the dilemma. Under this record the Statute of Limitations had run in favor of respondents. They and those under whom they held had been in possession, openly, continuously and adversely of a part of the premises, at least, — 394 — claiming the whole premises under color of title for over the statutory period. Under the earlier decisions the transaction between the Moreheads, accompanied by possession and improvements, would have created color of title, although there was no written instrument executed purporting to deal with the title. [Rannels v. Rannels, 52 Mo. 108.] Our later decisions defining color of title incline to the view that it has its root in some document dealing with the title, however erroneous or imperfect. [Allen v. Mansfield, 108 Mo. l. c. 348.] The definitions of color of title need not be repeated here, but, under any definition, the deed of the administrator of John McLure to the DeLisles created color of title. [Moss v. Kauffman, 131 Mo. l. c. 431; Quick v. Rufe, 164 Mo. l. c. 412; Hickman v. Link, 97 Mo. 482; see, also, Woodstock. Iron Co. v. Roberts, 87 Ala. 436.] There is no pretense that this conveyance and the subsequent conveyances were not bona fide, nor is it claimed that respondents, or those under whom they held, were disseizors, trespassers or squatters, hence the law applicable to that class of cases does not apply. Though Newton Morehead was under disability, yet the statute had begun to run before descent cast, and having once begun to rim against his ancestor, Stephen, it is an elementary principle that it will continue to run without interruption. [Pim v. St. Louis, 122 Mo. 654.] We are of the opinion that all the errors assigned by appellant should be disallowed in a court of conscience. The decree was plainly for the right party and must be affirmed. All concur.