Davis v. Dawson

201 S.W. 524, 273 Mo. 499, 1918 Mo. LEXIS 170

• Court: Supreme Court of Missouri
• Decided: February 18, 1918
• Status: Published

Opinion

CHARLES H. MAYER, Special Judge.

Plaintiffs are the three daughters and the son of George W. Dawson. Oix August 26, 1909, they brought this suit in the circuit court of New Madrid County, making the four soxxs and the daxxghter of Thomas H. Dawson defendants, for the purpose of deterxnixxing and quieting the title to,five hundred and seventy-nine acres of laxxd lying ixx said county. On change of venue the cause was transferred to Butler County, where on May 3, 1911, judgment was rexxdered.

George W. Dawson and Thomas H. Dawson were brothers. Prior to 1857 and until their death, they resided ixx New Madrid County, where all of the plaintiffs axxd all of the defendants were born, and where all of them eontixxue to reside. The land in' controversy is located oxx the Mississippi River and is near the town of New Madrid, in which town, or in the vicinity of which, all of the parties to this suit have spent their lives. The land lies together, but is referred to in the record as the Netherton Tract, containing four hundred axxd nineteen acres, and the Miller Tract of one hundred and sixty acres. Title to all of the land emanated from the Uxxited States Government more than thirty years before the filing of this suit.

In 1847 Thomas IT. Dawson became the record owxxer of the Netherton Tract. On April 20, 1857, the Netherton Tract was sold under execution and conveyed by sheriff’s deed to George W. Dawson, who on August 7, 1856, had obtained title to the Miller Tract by conveyance from one Miller, the then record owner.

On November 5, 1856, George W. Dawson conveyed the Miller Tract to Henry Clay Watson, who on April 7, 1857, re-conveyed that tract to George W. Dawson.' Thus the record title to all of the land came to George W. Dawson, and in him it remained until his death in 1862, when is vested in these plaintiffs, his children, who still retain it.

The defendants, laying no- claim to paper title, pleaded, by amended answer, 1st, the ten-year Statute of Limitations, and, 2nd, such facts as to give them title acquired by virtue of the thirty-year Statute of Limitations.

From the evidence we adduce that Thomas H. Dawson, who • died in 1906, moved onto the land in controversy in the early fall of 1856, and, although the record title to the Miller Tract was then in his brother, George W. Dawson, or for a short time in Henry Clay Watson, Thomas H. Dawson set about clearing a part of that tract, built a house thereon, and erected a saw-mill on the Netherton Tract.

Prior to moving onto this land, Thomas H. Dawson had lived with his mother on the old Dawson homestead in or near the town of New Madrid. The mother died in August, 1856, and soon thereafter Thomas H. Dawson moved from the old homestead to the land in question, and his brother George W. moved into the old homestead and continued to reside there until his death in 1862. Although George W. Dawson obtained title to the Netherton Tract in 1857 under the sheriff’s deed heretofore referred to, so that he then held title to all of the land, he never took possession of any of it, and for more than two years Thomas H. Dawson continued to reside in the house which he had built on the Miller Tract, continued his clearing and the operation of a sawmill and wood-yard on the Netherton Tract, from which wood-yard, he sold cord wood to the steamboats plying the Mississippi Eiver. In 1859, being driven away by the overflow of the river, he moved to New Madrid, where he remained until his death.

All of the land was and is subject'to overflow, the water covering it to a depth of from five to fifteen feet, frequently standing thereon for several weeks. There were few successive years from 1856 until the trial that the land did not overflow. While he resided on the land in controversy, Thomas H. Dawson stated to friends that he had gone there to make his permanent home. After moving back to New Madrid, he continued to speak of the land as his, and there is no testimony that any other person laid any claim to it until within a few years before this suit was brought. Soon after Thomas H. Dawson moved to New Madrid, the house which had been built on the Miller Tract was torn down and moved away, but at some time later a house was built on the Netherton Tract by him, or by some of his sons for him, and that house was on the Netherton Tract at the time of the trial.

From 1857 until the trial, Thomas H. Dawson or some of his sons, on occasions, sold timber off the land; at intervals they had tenants there who cultivated a small portion of the Miller Tract on shares; piling, staves and saw logs were sold from time to time off the Netherton Tract. Because of the frequency with which the land overflowed, it was impossible to cultivate any of it continuously, but various tenants were put on the place to clear it, to cut cord-wood and saw-logs and to raise stock. Thomas H. Dawson had all of the land surveyed in the eighties in order that he might determine whether or not those cutting timber about the land were encroaching upon it.

It is certain that at least some of the plaintiffs did not know that plaintiffs ever had any interest upon which to base a claim to the land until Mr. Lee Hunter tried to buy the interest of Clay Dawson, one of the plaintiffs, which was very shortly before this suit was brought. If the mother of plaintiffs, who had remarried in 1867, had any knowledge of their interest in the land, it is certain that she had not conveyed the information to her daughter, Mrs. Jackson, who first heard of it at the time of the attempted purchase just referred to, and there is no evidence that the mother ever communicated such information to any of her children. The inventory of her husband’s estate, of which she was executrix, contained a long list of real estate owned by him, but made no mention of the land in controversy. All of the plaintiffs testified that no taxes had been paid by-them; there was no testimony that their mother had paid taxes on this land. William Dawson, one of the defendants, who was collector from 1870 until 1874, testified that during that time he paid the taxes. Robert Dawson, another defendant, who succeeded William Dawson as collector and served as such until 1880, testified that during that time he paid the taxes. R. J. Waters, who followed Robert Dawson as collector and served as such from 1880 until 1884, testified that during that time Robert Dawson paid the taxes. Mr. Neal and Mr. Steele, who successively followed Mr. Waters in the office of collector, were dead at the time of the trial. H. E. Broughton, who was the collector at the time of the trial and who had held that office continuously since 1894, testified that the defendants had paid the taxes during all of that time.

In about 1904, Doctor Dawson, one of the defendants, and his son were in charge of the place under Thomas H. Dawson; and the defendants, through Dr. Dawson, occupied the house which had been built on the Netherton Tract from that date until the trial; they fenced a woods pasture on the Netherton Tract and fenced and cultivated twenty-seven and one-half acres on the Miller Tract. They salted their stock on the Netherton Tract and used it for grazing their hogs and cattle.

The cause was submitted to the .court sitting as a jury and the court found for the defendants as to all of the Netherton Tract and twenty-seven and one-half acres of the Miller Tract, that being the portion of the Miller Tract which had been fenced and cultivated by Dr. Dawson, and the court entered judgment quieting the title to that much of the land in the defendants. The court found for the plaintiffs as to the remainder of the Miller Tract, and entered judgment quieting title to it in the plaintiffs. From this judgment both the plaintiffs and the defendants appealed.

Defendant’s case. We shall first dispose of defendants’ assignment of errors. Finding fault with.the court’s failure to award all of the land to them, they contend that the judgment should be reversed with directions to the trial court to enter judgment quieting-title to all of the land in controversy.in them,, because, they urge, that the court erred in failing to presume that after April, 1857, a deed was executed by George W. Dawson to Thomas H. Dawson conveying all of the land in controversy.

All will agree that, when the facts warrant it, precedent and sound reason justify the court in presuming the execution and delivery of a deed. [Dessaunier v. Murphy, 22 Mo. 95; Brinley v. Forsythe, 69 Mo. 176; Manning v. Coal Co., 181 Mo. 359; United States v. Chavez, 175 U. S. 509.] But, admitting this, as must be done, and conceding, without deciding, that the facts in this case would have justified the trial court in indulging the presumption of a deed, defendants’ contention cannot be sustained for two reasons:

(a) No such issue was tried in the court below. In their original answer defendants ‘ ‘ admit that they claim title to the real estate and allege that they own the same in fee. ’ ’ But defendants filed an amended answer in which their only claim to the land was based upon the ten-year Statute of Limitations, which claim is not insisted upon here, and upon the thirty-year Statute of Limitations. When these answers and the whole course of the trial are considered, the conclusion seems inevitable that defendants below not only did not rely upon the presumption of a deed, but that they deliberately determined not to present that question, and to rest their case on Section 1884. Nowhere in the record before us except in the abandoned answer, is there the slightest suggestion or intimation that defendants, the plaintiffs, or the trial court even thought of the presumption of a deed. Having chosen to eliminate the question in the trial court, defendants cannot now have a reveral, because it was not considered. This is a court of review; unless a question has been so presented in the trial court as to call for action by that court, there is no action to review. [Laclede National Bank v. Richardson, 156 Mo. 270; State ex rel. v. Chick, 146 Mo. 645; Walker v. Owen, 79 Mo. 563.]

(b) This case was tried before the court sitting as a jury. Plaintiffs made a prima-facie case when they showed the paper title to be in themselves. If, for argument, it be conceded that the question of the presumption of a deed was mooted below, the burden was upon the defendants to prove the facts upon which the presumption could rest.

No instructions were asked or given upon this branch of the case and from the court’s judgment it is apparent, conceding that the question was in issue, that the court sitting as a jury found that the defendants had not so carried the burden of proof as to justify the court in invoking the presumption. The rule has been firmly established in this State that when a primafacie case is made by plaintiffs, and no instructions are asked or given, the appellate court will not review the evidence for the purpose of determining its sufficiency to overthrow plaintiffs’ case. As typical of the many cases in which this rule has been stated and applied, see Ess v. Bouton, 64 Mo. 105; Bethune v. Railroad, 139 Mo. 574; Zimmerman v. Railroad, 156 Mo. 561. The rule applies with aptness to this branch' of the case at bar.

Defendants’ contention that the court erred in not holding t]iat, as stated by them, “by virtue of the thirty-year statute whatever title plaintiffs had was forfeited and vested in defendants, who were therefore entitled to judgment for the whole of the Miller Tract, as well as the Netherton Tract,” must be ruled against them.

Plaintiffs having made a prima-faeie case of ownership of all of the land, it became necessary for defendants, in order to overthrow that case, to prove that for a period of thirty consecutive years plaintiffs or someone under whom they might claim, had no possession of the land, had paid no taxes thereon, had failed to bring suit within one year thereafter, and that defendants were in lawful possession. It is conceded that neither the plaintiffs nor any person under whom they might claim, ever had possession of any part of the land, and the evidence apparently satisfied the trial court that no taxes had been paid by plaintiffs for the thirty-year period. But it is quite as apparent that the trial court did not find that defendants were in possession of all of the land. Defendants’ evidence tended to prove that they were in possession of all of it, but that they had fenced only the cleared field on the Miller Tract, and they had by that fence joined the cleared field with the fenced clearing on the Netherton Tract where stood their house and barn. It will be borne in mind that at no time did defendants ever have any color of title to the Miller Tract. Possession without color of title is confined to the part actually occupied. [Rannels v. Rannels, 52 Mo. 108.] It was for the trial court to determine from all of the evidence what part of the lands defendants were occupying. The evidence of the defendant’s possession of the whole of the Miller Tract was not such as to justify this court, as a matter of law, in holding that they were in possession of all of it. Upon the evidence reasonable minds might well differ as to whether or not defendants were in possession of any part of the Miller Tract, except the twenty-seven and one-half acres fenced. The question was one of fact. It was determined by the trier 'of fact against defendants, except as to the twenty-seven and one-half acres which defendants had fenced, and except all of the Netherton Tract. There being substantial evidence upon which to base the finding, the authorities in this State are unanimous in holding that this court will not weigh the evidence.

Plaintiff’s Oase. Attending the errors alleged by plaintiffs: Their chief contention is that there was no evidence that plaintiffs, or any person under whom they might claim, had not paid the taxes for thirty con'secutivo years, and that, therefore, there was no evidence to sustain the court’s judgment awarding part of the land to defendants.

The evidence not only shows conclusively that for more than thirty years none of the plaintiffs themselves paid any taxes, but there is direct evidence that the defendants did pay the taxes from 1870 until 1884, and from 1894 until the time of the trial. There is no direct evidence as to who paid the taxes during the ten years from 1884 until 1894. The persons who held the office of county collector during those years had died prior to the trial. Defendants were not limited to direct evidence; the non-payment of taxes'for thirty years may be proved by circumstantial evidence. [Campbell v. Greer, 209 Mo. 199; Land & Imp. Co. v. Epright, 265 Mo. l. c. 217.]

A review of this question by this court is limited to a determination of whether or not the circumstances furnished any substantial evidence^ upon which the court’s finding of non-payment of taxes could be predicated; was there evidence -from which non-payment of taxes could be legally inferred? All of the plaintiffs testified that no taxes were paid by them. There is no evidence that their mother paid such taxes at any time, and she is the only person that plaintiffs have suggested as being likely to have paid them. No witnesses had ever heard her claim any interest in the land; her own daughter who had lived in the vicinity of the land all of her life had never heard of any interest owned by plaintiffs until shortly before suit was filed; she heard of it through the attempted purchase by Mr. Lee Hunter of Clay Dawson’s interest. The inventory of George W. Dawson’s estate shows that if plaintiffs’ mother knew of her husband’s ownership of the land, she failed to include it in the inventory of her husband’s estate. It seems certain that she paid no taxes from 1870 to 1884, and from 1894 to 1909, when she died. The evidence strongly indicates that she either knew nothing or cared nothing about this land. Her interest was surely no greater than that of her four children, who admitted that they had paid no taxes on the land and who had never shown the slightest interest of any character in the land until shortly before this suit was brought.

With the foregoing circumstances in mind, one cannot say that there was no substantial evidence upon which to predicate a finding of the non-payment of taxes during the thirty years.

One other alleged error is pressed by plaintiffs as grounds for reversal.

George W. Dawson left a will by which he devised to his wife for life, remainder to his four children, a one-fifth interest in his real estate, and provided that until she should remarry she should have the right to use and occupy all of his real estate, the residue of which was devised to his four children, plaintiffs in this action. The widow, Laura A. Dawson, remarried in 1867, and died shortly after this suit was brought.

Defendants introduced the following minute from the record of the county court:

“New Madrid County Court, May term, 1863, Thursday, the fourteenth day of the month. Court met pursuant to adjournment. Present the same justices as yesterday.

“1. Now comes Laura Dawson, widow and relict of G. W. Dawson, and by attorney files her renunciation of the provisions of the will of her deceased husband. ’ ’

Proof of the will of George W. Dawson was made .in the county court of New Madrid County on September 16, 1862. On that date, and on May the 14th, 1863, when the foregoing minute was made, the county court was fully possessed of jurisdiction in all probate matters. The provisions of the statute then in force relative to land passing by will in lieu of dower, and for the renunciation, of wills, were contained in sections 15 and 16, chapter 56, Revised Statutes 1855, and were literally the same as the provisions covering those subjects now appearing in Sections 360 and 361, Revised Statutes 1909.

Upon this state of facts, plaintiffs make the contention, as stated by them, that “under the will of George W. Dawson, his widow Laura Dawson, having remarried, was entitled to a life estate in one-fifth of tlie lands, with the remainder to these children. She was alive at the institution of this action; she died before the trial, ... No renunciation was shown in evidence.” Therefore, plaintiffs say, that until the death of Laura A. Dawson, the thirty years’ statute did not begin to run against the remaindermen as to the undivided one-fifth interest devised to her for life.

The county court .was the proper court in which to file renunciation. In order to give validity to the renunciation it was necessary to file it there. The record of the filing was full and complete, Under such circumstances, the minute or docket entry of the county court was admissible as evidence of the fact that a paper writing purporting to be a renunciation was filed on the 14th day of May, 1863. [Philadelphia, Wilmington & Baltimore Railroad v. Howard, 13 How. 307; Arundell v. White, 14 East, 215, 104 Eng. Rep. (Full Reprint) 583.]

Indeed, plaintiffs do not controvert this proposition. Their objection is that while the record may be sufficient to prove the filing of a writing purporting to be a renunciation, it cannot be taken as evidence that the writing was in form, duly executed and acknowledged, /as required by the statute.

This entry was made in open court for the benefit of Mrs. Laura Dawson, in her presence and at her request. It recites' that she did what she was attempting to do.

If Mrs. Dawson were in court asserting some right under the will, the recital in the county court’s records would be competent evidence, as her admission, and sufficient to show prima-facie that she had renounced the will.

“A record may also he admitted in evidence in favor of a stranger, against one of the parties, as containing a solemn admission, or judicial declaration by such party, in regard to a certain fact. But in that case it is admitted not as a judgment conclusively establishing the fact, but as the deliberate declaration or admission of the party himself that the fact was so. It is therefore to be treated according to the principles governing admissions, to which class of evidence it properly belongs.” [1 Greenleaf on Evidence (16 Ed.), sec. 527-a.]

In the case at bar, the plaintiffs, in asserting for their own benefit that their mother had a life estate in one-fifth of the land in controversy, that is, that she did not renounce the will, are in no better position than she would be were she making the assertion.

Furthermore, this record was made forty-eight years before the ease at bar was tried. There is no evidence that at all times the renunciation had not been treated as valid and binding, nor that it had not been acted upon as such. This suit was brought during the mother’s lifetime; she was not made a party; the plaintiffs alleged that they owned the entire estate, both legal and equitable in said real estate, and every parcel thereof. Had plaintiffs not recognized the mother’s renunciation, made almost fifty years before the suit was brought, as good and sufficient, they would have known that, as to her one-fifth life interest, their suit was being prematurely brought. Under such circumstances, and after so long a time has elapsed, the court is justified in presuming that in filing the renunciation the regular and natural order of business was observed. [Long v. The Joplin Mining & Smelting Company, 68 Mo. l. c. 432; Williams v. Mitchell, 112 Mo. l. c. 313.] The judgment is affirmed.

Graves, G. J., and Bond, Walker and Blair, JJ., concur ; Williams and Woodson, JJ., concur in result: Faris, J., did not sit.