Widdicombe v. Childers

84 Mo. 382
CourtSupreme Court of Missouri
DecidedOctober 15, 1884
StatusPublished
Cited by5 cases

This text of 84 Mo. 382 (Widdicombe v. Childers) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Widdicombe v. Childers, 84 Mo. 382 (Mo. 1884).

Opinion

Ray, J.

This is an action of ejectment for the southeast quarter of section thirty-six, township sixty-four, range six, west, and was originally against Oliver P. Childers. It was instituted in the circuit court of Clark county on the twenty-fifth day of August, 1874. The petition is in the usual form; the answer of the defendant, Childers, was a general denial. The cause was [386]*386sent by change of venue to the Marion circuit court. On the third day of March, 1876, Lucretia Jungher, Sallie F. Johnston, and H. Will. Johnston, were, upon their own motion, and against the plaintiff’s objection, made parties defendant, and on the sixth day of March,. 1877, filed their second separate amended answer, upon which the cause was tried.

This answer denied that the defendant, Childers, was in possession of any portion of the land sued for except 14-/-^ acres, being that part of the tract, west of Fox Slough, enclosed by a fence. The answer then set up the statute of limitations, and for an equitable defence, alleged that the defendant, Lucretia Jungher, was the widow, and Sallie F. Johnston, the only heir at law, of Theodore Jungher, and that H. Will. Johnston was the husband of said Sallie F. Johnston. That, in 1836, Edward Jenner Smith intended to enter, and applied to enter, and did enter, the land sued for, but that the application was, by mistake of the register who filled the same, made for the southwest quarter instead of the southeast quarter. That the southwest quarter had been, previously sold to one Robert L. Wooden, and was mistakenly inserted by said register, in the .application signed by said Smith, instead of the southeast quarter, which was the tract actually entered and intended to be applied for and entered by said E. Jenner Smith. That the correct land was by the register noted upon the tract-book and plat-book, which had since been wrongfully and fraudulently changed. That the said E. Jenner Smith took possession of, and on the sixth of November, 1837, sold, the southeast quarter to John D. Smith. That the executors of John D. Smith sold the same in 18,38 to Mary C. Buck, who, with her husband, sold to Theodore Jungher in 1857. That Jungher died, leaving defendant, Lucretia Jungher, his widow, and Sallie F. Johnston, wife of H. Will. Johnston, his only heir. That in 1870 these parties sold by warranty deed, [387]*387•thirty-five acres of said southeast quarter to E. P. Bull and John Fallon. That January 1st, 1873, they sold, by like warranty deed, the balance of one hundred -and twenty-five acres to John W. and Samuel McKee. That all of said conveyances were upon record in the office of the recorder of Clark county. That the said McKees, in 1874, verbally leased 14^% acres in the south part of the southeast quarter, west of Fox Slough, to defendant, O. P. Childers, who .was in possession of that portion of said land only. That the parties aforesaid claiming under said E. Jenner Smith, have been in possession of the said southeast quarter under their respective deeds continuously since the entry of said land. That the plaintiff, with full notice of the facts and of the equities of said defendants, and their grantors and •grantees, and with knowledge of the said mistake and -error in fraud of their rights, entered said southeast quarter and procured a patent to be issued to himself therefor, and asked that he be declared to be a trustee for the defendants, or those claiming under them, and the legal title be divested out of him, and vested in these -defendants, or those claiming under them, by deed of general warranty as aforesaid.

On the eighth day of November, 1877, plaintiff filed his replication, denying specifically each allegation of the said answer, and expressly and positively denying all allegations of notice to him, or fraud upon his part, in entering said land.

The case was tried before the court without a jury, ■on the sixteenth of November, 1877. The court found the issues for the defendants, and entered a final judgment against the plaintiff, but refused to decree the title in defendants, as prayed by them.

This finding and judgment of the court, in extenso, is as follows, to-wit: “The court doth find the following facts : That on the eighth day of November, 1834, one Robert Wooden entered at the land office at Pal[388]*388myra, the west one-half (£) of section thirty-six (36), township sixty-fonr (64), range six (6), and the west one-half (£) pf the northeast quarter of said section, and on the tenth of April, 1839, a patent issued to said Wooden for said tracts. That at the time of Wooden’s entry the number of the entry of the west one-half of said section, to-wit: No. 7,417, was entered on each of the-quarters composing said one-half section, viz.: the northwest quarter and southwest quarter, and the number of his entry of the eighty acre tract, viz.; No. 7,418, was entered on said tract on the plat of said section, and at the same time the fact of his entry was stated by the register in the tract book, showing the description and quantity of the -tracts, the date of the entry and the name of the purchaser. That afterwards,, to-wit: on the sixth day of July, 1836, one" Edward Jenner Smith applied to the register to enter or purchase-the remainder of said section thirty-six, to-wit: the southeast quarter of said section, and the east one-half of the northeast quarter. That at the date of Smith’s application Wm. Wright was still register, and the plat book and tract book both showed that the said southeast quarter and east one-half of northeast quarter of said section were vacant, and that the west one-half of said section, and west one-half of the northeast quarter had been sold in 1834 to Eobert Wooden. That Wm. Wright agreed to sell and did sell to said Edward Jenner Smith, said southeast quarter, and the east one-half of the northeast quarter of said section, and that Wm. Wright, the register, at the instance of said Smith, filled up a blank application in furtherance of said sale; but, in so doing, by mistake in describing said southeast quarter, substituted the letter W, instead of the letter E, by reason of which said mistake said application described said quarter as the southwest quarter instead of the southeast quarter of said section thirty-six.

That said Wm. Wright, on the return to him by said [389]*389Smith of said application, with the certificate of the receiver indorsed thereon, showing the payment to said receiver of the purchase price of a quarter section, and eighty acres, and, failing to discover the mistake in the description in said application, did, on the day said sale was made, enter the fact of said sale on his tract book by the correct description, viz.: the southeast quarter and the east one-half of the northeast quarter, of said section thirty-six, sixty-four, six (immediately under the entry of the sale to Wooden), giving in his said entry the date of said sale and the name of the purchaser, viz.: the said Edward J. Smith; and did, also, at the same time enter the number of said entries on both said tracts on his plat book, viz.: on the southeast quarter, No. 14,513, and the east one-half of the northeast quarter, No. 14,513 ; and that said-entries made by William Wright, the register, at the time of the sale, remained on said plat of said section and on said tract book unchanged, as late as 1858, a period of twenty-two years. The court further finds that at some time between 1858 and the spring of 1871 said entries were changed as follows, viz.: in the entry on the tract book of the sale of the southeast quarter to Edward J.

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Bluebook (online)
84 Mo. 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/widdicombe-v-childers-mo-1884.