Summary
In Hatch v. Rhyne, Mo., 253 S.W.2d 170, the plaintiffs claimed title to an island in the Mississippi River by reason of a county patent and subsequent deeds.
Summary of this case from Conran v. GirvinOpinion
No. 41930.
December 8, 1952.
APPEAL FROM THE CIRCUIT COURT, PERRY COUNTY, RANDOLPH H. WEBER, SPECIAL JUDGE.
J. Grant Frye, Cape Girardeau, for appellant.
Roscoe D. Moore, Perryville, Melvin Englehart, Fredericktown, for respondents.
Defendant-appellant Frank Rhyne has appealed from a judgment in an action in ejectment and to quiet title. The land involved is an island in the Mississippi River, known as Hatch's Island, located near the town of Seventy Six, Missouri. The trial court determined that fee simple title was in plaintiffs-respondents and adjudged that they have possession. The parties will be referred to as plaintiffs and defendant.
It was agreed that Perry County had title to the island when it executed a patent thereto on August 4, 1896. Plaintiffs introduced the patent conveying the island to one Estel; two quitclaim deeds dated August 12, 1896, conveying undivided one-half interests to George S. Hatch and William R. Wilkinson, respectively; and the will of George S. Hatch devising a life estate in all his property to his widow, plaintiff Martha Jane Hatch, with remainder equally to other plaintiffs. It was stipulated that any title in William R. Wilkinson under his quitclaim deed was vested in plaintiffs Abbie C. and John H. Wilkinson.
Defendant claimed fee simple title and right to possession by adverse possession for more than ten years. Defendant's cross claim sought cancellation of the patent from Perry County to Estel. This, for the alleged reasons: that William R. Wilkinson was at the time of the execution of the patent the presiding judge of the Perry County Court; that George S. Hatch was a brother-in-law of William R. Wilkinson; that the patent in fact conveyed some 400 acres, but described and purported to convey only 15.89 acres; that in reality the land sold for less than $1.25 per acre in violation of Section 6463, RSMo 1889, Section 241.160 RSMo 1949, V.A.M.S., providing in part that land such as here involved could not be sold for less than $1.25 per acre. In addition, to support the prayer for cancellation, it was contended at the trial (though not alleged), that the patent was issued in violation of Sections 3435 and 3561, RSMo 1889, Sections 49.140, 558.270, RSMo 1949, V.A.M.S., providing in part that a judge of a county court shall not directly or indirectly become a party to any contract to which such county is a party.
Defendant, in his "Points and Authorities", says that the patent to Estel was "procured by the fraud and collusion of George S. Hatch and William R. Wilk enson". Defendant does not develop this point in argument, other than to state the conclusion that "Respondents claim through an ancestor whose hands are stained by the grossest fraud arising out of the corruption of a public official of Perry County." We should be justified in ignoring this undeveloped contention. We shall, however, briefly discuss the matter as asserted by defendant in the trial court.
It is unnecessary to detail the evidence upon which defendant relied to sustain this contention. This, for the reason that it appears that defendant was a complete stranger to the transaction between Perry County and its patentee Estel; that defendant does not claim under the party allegedly defrauded or by virtue of any transaction between himself and either of the parties to the original transaction.
Defendant, therefore, was not a proper party to bring, and may not maintain, a direct action, by cross claim or otherwise, to have the original patent set aside on the ground of fraud. DeTienne v. Peters, 354 Mo. 166, 169, 188 S.W.2d 954, 955 [1-6], quoting from 37 C.J.S., Fraud, § 60(b), p. 344.
This conclusion, however, does not mean that, in the instant ejectment and quiet title action, defendant could not challenge the original patent as void upon its face or for invalidity due to the county's total lack of authority to convey the particular land. In other words, even though defendant was not a party to the transaction between Perry County and its patentee and does not claim under either, he nevertheless could, in order to defeat plaintiffs' title, show that the patent under which plaintiffs claimed was void on its face, or show by extrinsic evidence that the county did not have title to the land it conveyed. Cummings v. Powell, 116 Mo. 473, 479, 21 S.W. 1079, 1080; Morgan v. Stoddard, 187 Mo. 323, 330, 86 S.W. 133, 135; Frank v. Goddin, 193 Mo. 390, 398(3), 91 S.W. 1057, 1059. It appears, however, that the patent is valid on its face; and that the proceedings of the county court which preceded its issuance were regular. The patent recited that the land (15.89 acres and accretion) had been purchased for more than $1.25 per acre. Defendant may not defeat the apparently valid patent by extrinsic evidence tending to show that enough acreage (more than that recited in the patent) was in fact conveyed to make the recital that the land was sold for more than $1.25 per acre erroneous. The infirmity, if any, does not appear on the face of the patent or in the record of the proceedings of the county court prior to its issuance. Frank v. Goddin, supra. Likewise, defendant may not defeat the apparently valid patent by extrinsic evidence designed to show that the presiding judge of the county court violated a statute in the issuance of the patent. This alleged infirmity, likewise, does not appear on the face of the patent or in the proceedings leading to its issuance. See: Brinkerhoff v. Juden, 255 Mo. 698, 717-721, 164 S.W. 523, 528, 529; Sexton v. Dunklin County, 296 Mo. 682, 246 S.W. 195. It being conceded that the county had title at the time the patent (valid on its face) was issued, it follows that the patent operated as an absolute conveyance and conveyed legal title to the patentee. (Such disposition of defendant's contention does not imply that defendant's evidence was sufficient to sustain his claim that the original patent was procured by fraud.)
Defendant further contends that "There was no evidence introduced from which the court could obtain a correct description of the land in question." Defendant points out two particulars wherein he contends that the descriptions in the petition and judgment were incorrect or insufficient. Defendant says that the petition and judgment descriptions contain the phrase, "hence East 500 chains", while the original patent contains, as the corresponding phrase, "Th. E. 5.00 chs." Obviously, this is a typographical error in the petition and judgment. The judgment should be corrected to make it correspond to the patent in this respect.
Defendant also points out that the petition and judgment described land in sections 17 and 18, while the patent described land only in section 17. The land, to which plaintiffs claimed title, and described in the petition, is alleged to be in both sections 17 and 18; but the land so described includes the same land in section 17 which is described in the Estel patent. The patent conveyed the island and accretions then existing. The evidence shows that since 1896 there have been extensive accretions to the original island. While there was no direct evidence that the land which was described in the petition as being in section 18 was an accretion to the land described in the patent as being in section 17, nevertheless there can be no question but that such is the fact. The evidence was that the island had enlarged by accretions building toward section 18. We take judicial notice that section 18 lies west of section 17. Hartvedt v. Harpst, Mo. Sup., 173 S.W.2d 65,69[12-14].
There was no issue raised or tried below that the island, as presently constituted, did not in fact include land in both sections 17 and 18. Defendant's exhibit, a receipt for 1940 taxes which he claimed to have paid on the island in question, was for taxes assessed on land in both sections.
Plaintiffs made a prima facie case when they showed legal title in them under the patent, the two quitclaim deeds, and the George S. Hatch will. The real issue was, and is, whether defendant acquired title by adverse possession. Defendant claimed that he had held the island adversely since 1935. Plaintiffs claimed that defendant had held the island adversely, if at all, only since October 1938. Plaintiffs filed this action on August 26, 1948. If defendant's adverse possession did not begin until October 1938, defendant's claim must fail.
It will be unnecessary to review the evidence of the parties as to occupancy and use of the island prior to 1935. This, for the reason that defendant does not claim by virtue of the possession of any person other than himself and does not claim that his own adverse possession began until the fall of 1935. As background, however, for an examination of defendant's testimony, appears that defendant's father (who may have been on the island in one capacity or another prior to 1930) occupied the island in 1930, and for some time thereafter, under some arrangement with George S. Hatch; that defendant worked on the island with his father during a portion of this time; that after defendant's father left, defendant's brother farmed the island until 1935 or 1936 under an agreement with Mr. Hatch. Defendant's brother testified that he left in 1936, but defendant testified, and we may assume, that it was in the fall of 1935 when defendant went to the island and bought his brother's team and machinery, and thereafter, to the time of trial, farmed the island and lived on it until January, 1949.
Defendant testified that he has continuously claimed the island since he bought his brother's team and equipment in 1935; that he built a new house in 1942 and later built a barn; that he was on the island in 1930 when his father was farming it and, in this connection, defendant said: "We got what we raised on it." He said he knew nothing about his father obtaining permission from Mr. Hatch to go on the island and didn't know whether his father had any agreement with Mr. Hatch; that he paid his brother $250 for the team and equipment and supposed he was getting some sort of interest but didn't know whether his brother had any interest in the land.
Plaintiffs' witness, George Klobe, the son-in-law of George S. Hatch, testified that he had been administrator of the George S. Hatch estate; that the estate was closed in February 1938; that thereafter he handled the affairs of Mrs. Hatch, the widow and life beneficiary of the entire estate under the will of George S. Hatch; that in March or April 1938 defendant told him that the island lease had run out and asked that the island be leased to him; that defendant suggested a rental of $75 for the first year and $100 for the following year; that he, Klobe, was doubtful of his right to enter into a lease when he represented only Mrs. Hatch and not the residuary legatees; that he told defendant he didn't think he could lease it but for defendant to put in a corn crop and that, in the fall of 1938, he, Klobe, would estimate the corn crop and accept as rent one fourth of the crop; that any livestock and produce, other than corn, raised was to be defendant's property. Klobe further testified that, in the first part of October 1938, he had another conversation with defendant; that he reminded defendant that it was about time to go to the island to estimate the corn crop and figure the rent; that defendant replied that "he had had it looked up and found we didn't own any property over there"; that then was the first time he, Klobe, had any knowledge that defendant "was placing claim to the island."
Returning now to defendant's testimony pertaining to the matters to which Klobe testified. Defendant knew that Klobe was handling the properties for Mrs. Hatch after the death of her husband. He denied the conversation with Klobe in the spring of 1938 with reference to the corn crop rental agreement. He had obtained a deed in September, 1938, purporting to convey the island to him. He obtained the deed because an abstractor told him that he, defendant, needed color of title. (No point is made concerning this deed on this appeal; it does not appear, however, that the grantor in the deed which defendant obtained in September 1938 had any title or claim to any portion of the island.) Defendant said that he did have a conversation with Klobe sometime in which he, defendant, refused to pay rent. He thought, but was not positive, that this conversation was before he obtained the deed in September 1938. He said, however, that when Klobe told him that he, Klobe, was coming over to estimate the corn and collect the rent, he told Klobe that he, Klobe, didn't own the land; that he so told Klobe because he, defendant, then had a deed for the land.
It is apparent that whether defendant has claimed the island adversely since 1935, or whether he occupied it under some arrangement with the agent of a co-owner thereof until October 1938, depends entirely upon a determination of the credibility of the witnesses, Klobe and defendant. Both were interested; defendant as a party, Mr. Klobe because he is the husband of a residuary legatee under the George S. Hatch will. Our practice is to defer to the judgment of the trial court on the issue of credibility. We do defer to the conclusion of the trial court on this issue, but, independently thereof and upon the record before us, we have concluded that the issue must be decided adversely to defendant. It seems unlikely that defendant in 1935 took over the operation of the island from his brother without knowing that his brother and father had occupied the island under some agreement with George S. Hatch. It is significant that defendant admitted having had a conversation with Klobe pertaining to rent for the island and knew that Klobe was acting in behalf of Mrs. Hatch. It is also significant that it was in September 1938 that defendant obtained the deed heretofore mentioned and said that the reason he refused to pay rent was because he had obtained the deed.
We find that defendant's adverse possession did not begin until October 1938. As plaintiff's instant action was filed in August, 1948, defendant's adverse possession had not continued for the required ten years. Section 516.010 RSMo 1949, V.A.M.S. It follows that defendant acquired no title.
Defendant contends that there was no evidence to support a judgment for some of the plaintiffs and that, therefore, the judgment should have been for him as to some undivided interest. He says that certain plaintiffs were not shown to have acquired any interest from the grantees in the Estel deeds to Hatch and Wilkinson, respectively. It is true that some of the names appearing as the residuary legatees in the George S. Hatch will are not identical with some of the names appearing as parties plaintiff. (It is apparent, however, that some of the plaintiffs described in the will by their maiden names, are parties in this suit under their married names.) It is also true that there was no direct evidence that certain of the plaintiffs are the same persons named as residuary legatees. Be that as it may, if George S. Hatch had title to an undivided one-half interest in the island at the time of his death, that interest passed by virtue of his will. Defendant concedes that at least some of the plaintiffs are residuary legatees under the will. That will provided that after the death of the widow, all the property of testator was to be divided equally among certain named individuals. Failure to identify certain of the plaintiffs as such individuals would simply mean, so far as defendant is concerned, that the interests of identified individuals would be greater. But this deficiency in proof, if it be such, is of no concern to the defendant and could not inure to his benefit. It was stipulated that plaintiffs Abbie C. and John H. Wilkinson are the sole surviving heirs of William R. Wilkinson, and any title which he formerly held was then vested in Abbie C. and John H. Wilkinson. It appears, therefore, that there are plaintiffs who have title, both as to the undivided Hatch interest and the undivided Wilkinson interest. Defendant's contention in this regard is without merit.
One of defendant's "Points and Authorities" is: "There was no evidence to support that part of the judgment requiring Appellant to store one-fourth of the rent corn for the preceding year for the Respondents; and that part of the judgment, for the additional reasons, is unwarranted." Defendant's argument does not expand or explain this contention. The trial court did not award plaintiffs any damages for rents and profits because of the insufficiency of the evidence and because of a further finding that defendant had "improved the value of the land sufficiently to compensate plaintiffs for past rental or loss of timber." (Plaintiffs who were entitled to possession were also entitled to nominal damages without proof other than right to possession. But plaintiffs did not appeal. Curd v. Reaban, Mo. Sup., 232 S.W.2d 389, 392[4-6].) The trial court also found that plaintiffs were "guilty of neglect in allowing defendant to make crops on the land in question and should not be permitted to divest defendant of his present crop". The trial court included in the judgment: "It is further ordered adjudged and decreed that plaintiffs have and recover one-fourth of all crops grown upon the land in question during the crop year 1949 and that defendant store said rental crop at a place on the land designated by the plaintiffs, but in the event defendant fails to gather and store said rental as required by this decree, then plaintiffs shall have the right to enter into said land and remove said grain rent." The judgment was entered November 1, 1949. Plaintiffs, as noted, did not appeal and consequently do not object to this portion of the judgment. If, as defendant contends, there was no evidence to support this portion of the judgment, then defendant has received three fourths of a corn crop to which he was not entitled. Defendant is in no position to complain of a portion of the judgment more favorable to him than the evidence may justify.
The judgment is corrected by substituting in the description of the land "5.00" for "500" and, as so corrected, is affirmed.
VAN OSDOL and LOZIER, CC., concur.
The foregoing opinion by COIL, C., is adopted as the opinion of the court.
All concur.