Opinion
May 3, 1938.
1. EJECTMENT: Accretions to Land. Where plaintiff had title to land lying along a river bank, sued in ejectment and to quiet title to land adjoining which he claimed as accretions when the river shifted, and where defendants without claiming title defended on the ground that the alleged accretions were a part of an island which was formed in the river, the finding by the court that the land in dispute was accretions to plaintiff's land was supported by the evidence.
The case being an action at law, tried by the court sitting as a jury, without instructions asked or given, and no reversible error appearing to have been committed, the finding is conclusive upon the court upon appeal.
2. EJECTMENT: Description: County. In an action in ejectment and to quiet title to land where the petition states the section, township and range in which the land is situated it is not necessary to state the county; the court takes judicial notice of the county in which that land of that description is situated.
3. EJECTMENT: Parties. Where plaintiff sued in ejectment and to quiet title, and title was in plaintiff's name individually, not as trustee, the defendants having filed only a general denial could not show that the title was held by plaintiff as trustee for an unincorporated society; such issue was not in the case.
4. JUDGMENT: Nunc Pro Tunc. Where a judgment as originally entered by the clerk omitted the names of some defendants and the plaintiff applied for a nunc pro tunc order to have the judgment amended, such order was authorized where the pleadings, the record, the summons, the sheriff's return and entries were consistent with only one theory, that the court had found in favor of plaintiff against all of the defendants.
5. TRIALS: Statements by the Trial Court. Statements made by a trial court during the course of the trial are not binding, but the judgment entered controls over an expression of opinion to the contrary made by the judge.
6. TRIALS: Failure of Defendant to Plead. In an action in ejectment and to determine title where defendants denied plaintiff's title and in effect denied the defendants had title, defendants were not injured by a judgment in favor of plaintiff.
Appeal from Jackson Circuit Court. — Hon. Marion D. Waltner, Judge.
AFFIRMED.
Benj. R. McGuire and David B. Logsdon for appellant.
(1) The court erred in failing to dismisss plaintiff's petition and in finding in favor of the plaintiff for the reason that plaintiff's petition does not state a cause of action and therefore there was no issue before the court; the petition in this cause being totally defective. Wolf v. Schulz Folding Box Co., 44 S.W.2d 866; Harger v. Barrett, 319 Mo. 633, 5 S.W.2d 1100; Powell Lbr. Co. v. Dalton, 185 S.W. 530. (2) The court erred in refusing to sustain defendant's demurrer at the close of plaintiff's case, and in further refusing to sustain plaintiff's demurrer to the evidence at the conclusion of the entire case, for the reason that under the pleadings and the evidence, judgment should have been for the defendants. Barrie v. Ranson, 46 S.W.2d 186; Barlow v. Scott, 85 S.W.2d 504. (3) The court erred in refusing to sustain defendants' motion for a new trial, for the reason that under the petition in said cause there is no allegation in plaintiff's petition that the lands involved were under the jurisdiction of the Circuit Court of Jackson County, Missouri. Barrie v. Ranson, 46 S.W.2d 186. (4) The court erred in refusing to sustain defendant's motion to dismiss this action, for the reason that plaintiff testified that he was not the real party in interest and, therefore, was not entitled to prosecute this action. Methodist Episcopal Church of U.S.A. v. Walter, 50 F.2d 416; Proctor v. Board of Trustees, 225 Mo. 51; Tucker v. Diocese of West Mo., 264 S.W. 897. (5) The court erred in refusing to dismiss plaintiff's action on motion of the defendants for the reason that plaintiff testified that he was acting, in fact, for an unincorporated religious association, which association is prohibited by the Constitution of the State of Missouri, to hold title to real estate excepting for churches, cemeteries and parsonages. Therefore, the court will not aid such an association in doing something by artificial means, through an agent, that which it is prohibited by law to do itself. Methodist Episcopal Church of U.S.A. v. Walter, 50 F.2d 416; Proctor v. Board of Trustees, 225 Mo. 51; Prairie Slough Fishing Hunting Club v. Kessler, 252 Mo. 424. (6) The judgment in the cause does not follow the verdict and findings of fact by the court in that in Count 1 the verdict of the court named only a certain portion of the defendants against whom the plaintiff was entitled to be given a judgment, and in the second count the findings of fact and verdict of the court was that plaintiff was entitled to judgment against certain named defendants and the judgment decree as to both counts does not follow the verdict and findings of the court. (7) The court erred in finding his verdict and judgment in favor of the plaintiff, for the reason that under all of the evidence of the case there was no showing that plaintiff was the owner of any section of the land to which an alleged accretion might be shown with the exception of two small tracts in Section 24, and even if the evidence was sufficient to show title by accretion, it could only affect title to land owned by plaintiff adjacent to and north of that land to which he had title. Wheeler v. Reynolds Land Co., 193 Mo. 279; Brummiel v. Harris, 148 Mo. 430; Barlow v. Scott, 85 S.W.2d 504; Franklin v. Haynes, 139 Mo. 311. (8) The judgment in the cause is irregular, uncertain and void in that it does not make final and complete disposition against all of the defendants named in plaintiff's petition, and is so uncertain that it cannot be determined what rights have been adjudicated. State ex rel. Dunklin County v. Blackemore, 275 Mo. 205; McCords v. McCord, 77 Mo. 166; Spalding v. Citizens Bank, 78 Mo. App. 374; Franklin v. Haynes, 139 Mo. 311; Benne v. Miller, 149 Mo. 228.
Arthur B. Taylor and R. Burns Strader for respondent.
(1) The petition in this cause is not defective for the reason it was amended before final judgment by setting out the county and state in which the land in controversy is situated, and for the further reason the description by section, township and range is sufficient. Furthermore, the petition following the provisions of statute, Section 1520, Revised Statutes 1929, is a sufficient statement of plaintiff's cause of action. Myher v. Myher, 224 Mo. 631; Smith v. Black, 231 Mo. 281; Sec. 1520, R.S. 1929; Huff v. Laclede Land Imp. Co., 157 Mo. 65; Stillman v. Clardy, 256 Mo. 297; Wolf v. Schulz Folding Box Co., 44 S.W.2d 866. (2) There was no error on the part of the court in refusing to sustain defendants' demurrer at the close of plaintiff's case nor in refusing to sustain defendants' demurrer at the close of the entire case. Doebbeling v. Hall, 310 Mo. 204; Dumm v. Cole County, 315 Mo. 568; State ex inf. Mansur v. Huffman, 2 S.W.2d 582; Benne v. Miller, 149 Mo. 228; Hartman v. Owens, 293 Mo. 508; Ashton v. Penfield, 233 Mo. 391; Baxter v. St. Louis Transfer Co., 198 Mo. 1. (3) There was no error on the part of the court in refusing to sustain defendants' motion for a new trial. Burkham v. Manewal, 195 Mo. 500; Koehler v. Rowland, 275 Mo. 573. (4) Plaintiff as trustee may hold the land in trust for the benefit of the voluntary, unincorporated, religious association even though the trust be not evidenced in writing. There is no provision either in the Constitution nor by way of legslative enactment which prohibits a voluntary, unincorporated, religious association from holding title to real estate through the medium of a trustee. Thierry v. Thierry, 249 S.W. 946; 54 C.J., p. 49; Sec. 699, R.S. 1929. (5) There was no error on the part of the trial court in refusing to dismiss plaintiff's action when it appeared that the title to the real estate was held by the plaintiff for the benefit of an unincorporated, voluntary, religious association, as such associations are not prohibited by the Constitution nor by the statutes of the State to hold title to real estate through the medium of a trustee. Lilly v. Tobbein, 103 Mo. 477; Society of the Helpers of the Holy Souls v. Law, 267 Mo. 667; Harger v. Barrett, 5 S.W.2d 1100. (6) The judgment of the trial court nunc pro tunc supplies the names of all defendants both in Count 1 and in Count 2 so that in the judgment of the court none of the defendants stands omitted. Adair v. K.C. Term. Ry. Co., 220 S.W. 920; Stotler v. Railroad Co., 200 Mo. 107. (7) It is no error on the part of the trial court in finding a verdict and judgment in favor of plaintiff for the reason the evidence clearly showed that plaintiff was the owner and in possession of all of the land in Section 24 south of the old 1915 river bank, together with all accretions thereto. Anderson v. Sutton, 243 S.W. 643; Whyte v. St. Louis, 153 Mo. 80; Tatum v. St. Louis, 125 Mo. 647; McBride v. Steinweden, 72 Kan. 508. (8) The judgment in this cause is not irregular, uncertain and void as charged in Point 8 of appellants' assignment of errors for the reason that the judgment nunc pro tunc of the trial court makes complete disposition of all of the defendants named in plaintiff's petition, and in that judgment the trial court in no uncertain terms describes the land in controversy and makes a full and complete disposition of the issues in both counts. (9) By general denial defendants have forfeited any right to be heard in opposition to plaintiff's contention. Gilchrist v. Bryant, 213 Mo. 422; Rohlf v. Hayes, 287 Mo. 340; Barr v. Stone, 242 S.W. 661.
Respondent, plaintiff, brought this suit to settle a dispute over certain real estate situated in Jackson County, Missouri, described as follows:
"All that part of Section 24, Township 51, Range 31 and Section 13, Township 51, Range 31 lying South of the Missouri River, and North of the slough running through the North half of said Section 24, Township 51, Range 31 and the South-west quarter of Section 13, Township 51, Range 31, commonly known as `Rumpus Island or Rumpus Land.'"
In the first count of the petition plaintiff sought to quiet title, and in the second, ejectment of the parties in possession of the land. The defendants were: William L. Crull, Edith Crull, Russell Crull, Samuel O. Smith, Anna A. Smith, Blair L. Dobson, Mabel Dobson, Walter Sumner, Grace May Sumner, Ammon B. Thomas, Hazel Thomas, Carl Thomas, Elena Thomas, Herman Schmidtgall, Rachel Schmidtgall, H. Allen Lafferty, Ruth Lafferty and Jackson County, Missouri, a municipal corporation. Plaintiff claimed title to the land described, on the theory that it had accreted to his land lying to the south thereof, which he had acquired by deeds. The trial court found for plaintiff on both counts of the petition and the following named defendants appealed: William L. Crull, Edith Crull, Russell Crull, Walter Sumner, Grace May Sumner, Ammon B. Thomas, Hazel Thomas, Carl Thomas and Elena Thomas.
Appellants did not assert any ownership in the land in dispute. They filed a general denial. A number of the appellants were in possession of a part of the land as squatters. Plaintiff introduced evidence that in the year 1915, the south river bank extended across Section 24, Township 51, Range 31, beginning at the northwest corner of the southwest quarter of the southwest quarter of said section, thence in a northeasterly direction to the northeast corner of the southeast quarter of the northeast quarter of said section. Plaintiff acquired title by deed to all of this land lying along the river bank in Section 24, and claims title from that line to the present channel of the Missouri River by accretion. The evidence disclosed that the river washed away much of the land in Section 24 prior to 1915. Then for a year or two it wavered, but beginning about the year 1917 or 1918, it moved steadily to the north, and while doing so accreted land to the south of the river along the entire length of Section 24. At the time of the trial the south bank of the river ran almost due east, a short distance north of the center line of Section 13, Township 51, Range 31. Section 13 lies immediately north of Section 24, above mentioned. The evidence also disclosed that a slough or draw extended across this land from west to east, beginning at a point a short distance north of the southwest corner of the northwest quarter of the northwest quarter of Section 24, thence in a northeasterly direction into Section 13, crossing the southeast quarter of the southwest quarter of Section 13, thence in a southeasterly direction through the northeast quarter of Section 24, joining the old river bank of 1915 in the southeast quarter of the northeast quarter of Section 24. The land lying north of this slough or draw and south of the Missouri River, in sections 24 and 23, is the land in dispute. This slough is referred to in the description as running through the north half of Section 24. The defendants contended that the land north of the slough did not accrete to plaintiff's land, but that an island formed in the river and all the land north of the slough was a part of that island. If this were so, then plaintiff did not have title to the land in dispute. [See Dumm v. Cole County, 315 Mo. 568, 287 S.W. 445, l.c. 448 (4) (5).] The decisive question in this case, as the issues were made in the trial court, was, did the land in dispute accrete to the plaintiff's land which he owned south of the slough, or did it come into existence through the formation of an island? The strongest evidence against plaintiff's theory was the existence of the slough. However, plaintiff introduced substantial evidence that during the years 1922 and 1923 the slough or draw was not there; that during the high water of 1928 and other years there was a strong current of water across this land which cut a slough through it. Plaintiff introduced much evidence tending to show that all of the land in dispute was added to his land by accretion; that no island formed in the river at this point; that sand bars would at times appear and disappear, but that no permanent formation was ever made except the accretion to the mainland south of the river.
The following in Dumm v. Cole County, 315 Mo. 568, 287 S.W. 445, l.c. 447, 448 (2, 3) is applicable to this case:
"This being an action at law, tried by the court sitting as a jury, without instructions asked or given, and the judgment being sustained by substantial evidence, and no reversible error appearing to have been committed in the admission or rejection of evidence, the finding is conclusive upon us. [In re Lankford's Estate, 272 Mo. 1, 197 S.W. 147; Case v. Sipes, 280 Mo. 110, 217 S.W. 306; Wiley v. Harlow, 274 Mo. 170, 202 S.W. 533; Cullen v. Atchison County (Mo.), 268 S.W. 93.]"
The facts in the Dumm case, supra, were to a great extent the same as in the case at bar. On the merits of the case the judgment quieting plaintiff's title and judgment in ejectment were for the right party.
Appellants insist that plaintiff's petition was fatally defective because the description of the land failed to state the county and State within which it was located. Plaintiff, before judgment was entered, amended his petition by interlineation, adding the words, "Jackson County, Missouri." At the trial, deeds, plats, and oral evidence were introduced showing that the land was situated in Jackson County, Missouri. Appellants assert that the amendment was made without their knowledge. Ignoring the amendment, the petition was sufficient to support the judgment. This same situation was before the court in Myher v. Myher, 224 Mo. 631, l.c. 637, 123 S.W. 806, l.c. 807, where this court said:
"This court takes judicial cognizance of land descriptions in the government surveys, and we also take judicial cognizance of the political subdivisions of the State. We know that Sections 13 and 14, Township 62, Range 16 are in Adair County. It is argued that those numbers of sections, township, and range may be found in other counties in other states; that may be, but we have no judicial cognizance of such matters in other states and even if the fact were proven we would not go abroad to hunt for such a fact for the purpose of rendering uncertain a description which is certain enough when applied to land within our purview. This point was practically so decided in Long v. Wagoner, 47 Mo. 178."
The point is ruled against appellants.
In a number of assignments of error appellants contended that the plaintiff held this land as trustee for the Reorganized Church of Jesus Christ of Latter Day Saints, an unincorporated religious society; that, therefore, plaintiff was not a proper party to bring this suit; and also that such a society was prohibited, by our Constitution, to hold title to real estate except for a church purpose. Appellants filed only a general denial, and therefore are not in a position to question plaintiff's right to sue. The title was in plaintiff's name individually and not as trustee. Therefore, upon the face of the record, plaintiff had the right to maintain this action. If appellants desired to question plaintiff's right, it was their duty to raise that question by answer. In Harger v. Barrett, 319 Mo. 633, 5 S.W.2d 1100, l.c. 1105 (11, 12), this court said:
"In addition, an objection to parties should be made by special demurrer or by answer; unless so raised, such defect is not subject to review on appeal." [See, also, Ashton v. Penfield, 233 Mo. 391, l.c. 418, 135 S.W. 938, l.c. 944 (1) (2, 3).] If title to this land was held by plaintiff, as trustee for an unincorporated religious society, in violation of law, that question was not an issue in the case. The State, by a proper proceeding, has the authority to settle that question. [See 54 C.J., p. 49, sec. 102.] Certainly appellants could not litigate this matter under their general denial.
Appellants next assert that the judgment of the court, on both counts of the petition, was insufficient, in that all of the defendants were not named therein. The judgment, as originally entered by the clerk, omitted a certain number of the defendants. Plaintiff applied for a nunc pro tunc order to have the judgment amended. If the nunc pro tunc order, as entered by the trial court, was authorized upon the record, then the judgment is proper. We therefore pass on to the dispute over the nunc pro tunc entry. The trial court had before it the pleadings, consisting of plaintiff's petition which named all of the defendants, the answer of all of the appellants in this case, a summons and the sheriff's return thereon, a record of the hearing of the cause, and an entry on the judge's docket which read as follows:
"`September 9, 1935; Cause having been heretofore fully heard and under advisement, Decree for Plaintiff on Count One (1), Decree for Plaintiff on Count Two (2).'"
The court also had the minute book of the clerk before it, which contained the following entry: "Decree quiet title to plaintiff and writ of possession." That record would be sufficient information for a clerk of the court to enter a judgment for the plaintiff against all of the defendants. If that be true, the record was sufficient upon which to base a nunc pro tunc order. See Doerschuk v. Locke, 330 Mo. 819, 51 S.W.2d 62, l.c. 64 (5), where this court quoted with approval the following from an earlier case:
". . . the record must in some way show, either from the judge's minutes, the clerk's entries, or some paper in the cause, the facts authorizing such entries."
The record, in the case under consideration, was consistent with only one theory, that the court had found in favor of plaintiff against all of the defendants. It was therefore sufficient to support the entry nunc pro tunc amending the judgment.
Appellants refer us to oral statements, made by the trial court during the course of the trial, indicating that the court was of the opinion that plaintiff had not proven any damages, and was entitled to a judgment on the issue of ejectment against only a number of the defendants. The court may have been prompted to make these statements because only a part of the defendants were shown to be in possession of the land. However, statements made by a trial court during the course of a trial are not binding. The judgment in this case was not entered until some months after the trial and after a full consideration of the case. That judgment controls over any expression of opinion to the contrary made by the trial judge during the course of the trial.
It seems that appellants, on this appeal, complain much about things that were of no concern to them. By their answer they said in effect: We deny that plaintiff has title to this land, and we, the defendants, appellants here, have no title. In Gilchrist v. Bryant, 213 Mo. 442, 111 S.W. 1128, this court said:
"Furthermore, defendant does not claim title in his answer. By filing a general denial he denied that plaintiff claims title or was the owner in fee simple absolute; but he did not stop with that. Mark, he also denied that he himself had any claim, title, or interest in the land hostile to plaintiff. On such a pleading can defendant be much injured by a judgment in favor of plaintiff?"
The judgment is affirmed. Cooley and Bohling, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.