Russ v. Hope

WILLIAMS, C. This is a suit under section 2535, Revised Statutes 1909, to determine the title to the north half of the southwest quarter of section 7, township 17 north, of range 11 east, in Pemiscot county, Missouri. The suit originated in the circuit court of Pemiscot county, but was taken on change of venue to Butler county, where trial was had before the court without a jury, resulting in a judgment in favor of the ■defendant. William Gr. Easley, the common source of title, acquired title to this land, September 12, 1858. He died in 1896. The plaintiff, William M. Easley, is a son of said William Gr. Easley, deceased. Plaintiff Russ is the grantee of the other surviving heirs of said William Gr. Easley, in deeds dated January 30, 1906. Defendant undertakes to show title by two dif — 641 — ferent chains of title originating in the said common source. One of said chains of title is as follows: 1. Quitclaim deed from William G-. Easley and wife to Isaac Bracken, dated October 2, 1858. (It is contended by plaintiff that this deed did not convey the land in question. This proposition will he discussed in the opinion). 2. Deed from Bracken to Hinman. 3. Deed from Hinman to Hinman. 4. Deed from Hinman to Merchants National Bank of Cincinnati, Ohio. 1 5. Deed from the Merchants National Bank of Cincinnati, Ohio, to J. E. Franklin, dated December' 1, 1909. ' • 6. Warranty deed from J. E. Franklin to John A. Hope, defendant herein, dated November’7, 1908. • Defendant’s other chain of title is as follows: a. Sheriff’s deed, reciting sale of the land in question under execution issued on a judgment for taxes against “ W. Gr. Easley,” conveying the property' to Virgil P. Adams. The sale occurred November 4,1879; deed dated March 10, 1880. h. Deed from Virgil P. Adams to Benjamin F: Bareroft. c. Deed from Benjamin F. Bareroft to Thomas B. Simms. • ■’ d. Deed from Thomas B. Simms to J. E. Franklin. e. Deed fromo¡said J. E. Franklin to John A. Hope,- defendant herein. There was also another sheriff’s deed for taxes reciting the sale of the land upon execution based upon á judgment for taxes rendered against the Merchants National Bank of Cincinnati, Ohio. The sale occurred November 4, 1879, the deed was dated March 10, 1880, and the land was conveyed to Virgil P. Adams. — 642 — The evidence tended to show that this land is what is known as swamp land, and is wild, timbered and unimproved and has not been in the possession of any one. The evidence tended to show that said "William G. Easley left Pemiscot county in the year 1859, moving to the State of Tennessee, where he resided to the time of his death in 1896. It was shown in evidence that all of the circuit court records and the records in the recorder’s office of Pemiscot county were destroyed by fire in 1882. It was also admitted that abstracts of record known as the “Carleton Abstracts” had been properly certified by the judges of the county court and circuit court of Pemiscot county, and that the same were admissible under section 6415, Revised Statutes 1909. The circuit court found that defendant had acquired by mesne conveyances all of the interest and title in said land which was originally owned by William G. Easley. The court further found that defendant was also entitled to recover on the ground of laches. Such further facts as are necessary to an understanding of the issues raised will be set forth in th© opinion. OPINION. The defendant Hope by mesne conveyances became vested with whatever title passed to the respective grantees in the deeds executed, October 2, 1858, by William G. Easley and wife to Isaac Bracken and in the sheriff’s deed dated March 10, 1860, based upon a sale under execution issued upon a tax judgment against W. G. Easley. If either of the two above mentioned deeds conveyed the title of William G. Easley in this land, the defendant is the owner and the judgment'of the circuit court is correct. If neither of these deeds conveyed or divested William G. Easley — 643 — of his title, then the plaintiffs as heir and grantee of the heirs of said "William G. Easley, are the owners of said land and entitled to recover. The trial court was of the opinion that defendant might also recover on the theory of laches upon the part of plaintiffs and those under whom they claim, but we are unable to find any evidence that would justify the application of the doctrine of laches to this case. of Land in Deed, I. Did the title of William G. Easley to this land pass by the deed to Bracken, October 2, 1858? We think not. All the evidence concerning this deed is gathered trom the entries contained in Carleton’s Abstract on the page headed, “Carleton’s Abstract, Section 7, Township 17 North, of Range 11 East,” which were as follows : “Grantor, William G. Easley and wife; ‘ ‘ Grantee, Isaac Bracken; ‘ ‘ Quantity 560 acres. Parts of section: a, b, c, d, e, f, g, h, i, j, o, p, k, 1. Consideration per acre $1.13. Date of instrument, October 2d, 1858. Date of filing: November 2d, 1858; Book B. page 33. Dower relinquished.” Under the head of “Explanation” on the same page was the following in the handwriting of the maker of said abstract, viz.; “In last description of 80 acres, k, 1 no section is mentioned. In all probability section 7 was intended; but record does not say so.” It appears from the evidence in this case that the abstracter used the small letters from a to p both inclusive to designate the sixteen different forty acre tracts of each section. The upper or northern row of forty acre tracts, beginning at the northeast corner of the section were designated respectively as a, b, c, d; the second row, beginning at the west were designated as e, f, g, h; the third row beginning at the east were: — 644 — designated as i, j, k, 1; and the bottom or southern row beginning at the west were designated as m, n, o, p. It thus appears that k, 1, i\ "erred to in said explanatory note was the north half of the southwest quarter, which, if it were located in section 7, township 17, range 11, would he the land involved in this suit; but said note states the fact to be that the deed record does not state the section in which k, 1, is located. This explanatory note in so far as it states a fact concerning the record is just as competent to evidence title, or want of title, as any other portion of the abstract. The very purpose of an abstract is to state briefly the facts shown or disclosed by the record. Of course, the statement in said explanation of the abstracter’s conclusion as to what the grantor’s intention may have been would not be competent evidence of title. This is a suit to determine the existing title as shown by the record and is not an action to reform the deed, and therefore the grantor’s intention concerning any land not conveyed by the deed would he immaterial in the present action. lnUTaxasuit. II. Did the sheriff’s deed based upon the tax proceedings against W. Gr. Easley convey the title of William Gr. Easley in said land? At that time the record title stood in the name of William Gr. Easley. The evidence in this case shows that William G. Easley, at the time of this tax proceeding, was a non-resident of Missouri. The evidence is silent with reference to the kind of service had upon defendant in the tax suit, -hut because of the fact that William G. Easley was a non-resident, at that time, we think the inference fairly justifiable that the service of process in the tax suit was by publication. Service of process in a tax suit by publication directed against W. G. Easley would not he sufficient as against William G. Easley, and the sheriff’s deed based upon a sale had under said judgment would not — 645 — convey the interest of William G. Easley in said land. [Turner v. Gregory, 151 Mo. 100; Vincent v. Means, 184 Mo. 327; Spore v. Land Co., 186 Mo. 656; Gillingham v. Brown, 187 Mo. 181; Ohlmann v. Sawmill Co., 222 Mo. 62.] Personal Service: Identification of Defendant in Tax Suit. Would the situation he stronger if it should he assumed, arguendo, that personal service was had against W. G. Easley in the tax suit? Under the present evidence, we think not. We would then he confronted with a question as to identity without any evidence sufficient for its solution. Since W. G. Easley and William G. Easley are not the same name and are not idem sonans, there would be no inference or presumption arising from the mere statement of the two names that they were one and the same person. We know of no rule which would justify the inference or presumption that William G. Easley, the grantee in a deed, is the same person as W. G. Easley who after-wards is made an involuntary party to a tax proceeding concerning the same land. The burden of proving identity would certainly he upon the party whose title depends upon the proof of such identity; in the present case upon the respondent. The judgment is reversed and the cause remanded with directions to the circuit court to enter judgment in favor of the plaintiffs. Roy, G., concurs. PER CURIAM The foregoing opinion by Williams, C., is adopted as the opinion of the court. Brown and Walker, JJ., concur; Paris, P. J., not sitting.