Opinion
July 3, 1940.
1. PLEADINGS. In an action to quiet title where the trial court adjudged title in defendants in the tract described in the answer it erred in also adjudging title in defendants in other tracts not described, on the theory that all the land adjudged was in dispute though not pleaded, because evidence in relation to it went in without objection treating the answer as amended.
The trial court is not authorized to submit to the jury any issue raised by the evidence and foreign to the pleadings.
2. PLEADINGS: Counterclaim. Counterclaims are proper in actions to quiet title.
Where plaintiffs' petition described certain land and defendants' answer denied that plaintiffs owned all the land described in their petition, that part of a tract described had been sold to plaintiffs and a part described to defendants, and all of the land claimed by plaintiffs was the property of defendants by accretion, such answer was not a counterclaim.
While defendants, on the facts alleged, could have maintained an action to quiet title to other lands than the lands mentioned in plaintiffs' petition, the allegations were in answer to and for the purpose of defeating plaintiffs' asserted ownership of all the land described in plaintiffs' petition under Section 1521, Revised Statutes 1929.
3. QUIETING TITLE: Limitations. In an action by plaintiffs to quiet title to lands where the plaintiffs admit the sufficiency of the evidence to support defendants' title to 238.66 acres of land, but state that the two tracts specifically described in plaintiffs' petition, aggregating 23.25 acres, constitute a part of the first mentioned tract, the 23.25 acres being within overlapping descriptions in deeds under which the respective litigants claim title, under the circumstances defendants should be permitted to hold their judgment covering said two tracts described in plaintiffs' petition, but other additional tracts adjudged to be the property of defendants were beyond the scope of the pleadings in said cause.
Appeal from Cole Circuit Court. — Hon. R.A. Breuer, Judge.
REVERSED AND REMANDED ( with directions).
Ira H. Lohman and R.T. Keyes for appellants.
(1) It is well settled in this State that the court cannot render a judgment outside of the issues made by the pleadings, that judgments must respond to the issues raised by the pleadings and relief must be limited thereto and that judgment based on issues not made by the pleadings is coram non judice and void, that courts can only decide questions presented by the pleadings. "Courts cannot go outside the pleadings and grant relief not responsive to the issues." Rains v. Moulder, 90 S.W.2d 84, 338 Mo. 275; Riney v. Riney, 117 S.W.2d 699. "Court cannot render judgment outside the issues made by the pleadings." B'Nai Abraham v. Arky, 20 S.W.2d 904, 323 Mo. 776; Davis v. Johnson, 58 S.W.2d 748, 332 Mo. 417; Uhrig v. Hill Behan Lbr. Co., 110 S.W.2d 418, 341 Mo. 851; State ex rel. Gatewood v. Trimble, 62 S.W.2d 758, 333 Mo. 207; Burns v. Ames Realty Co., 31 S.W.2d 274; Southwest Land Orchard Co. v. Barrett, 240 Mo. 370; Riggs v. Price, 277 Mo. 333; State ex rel. Black v. Bartlett, 147 Mo. App. 133. "If the Court goes beyond and outside the allegations of the pleadings and the prayer for relief, and assumes to adjudicate a matter not within the issues made up in the pleadings, then such judgment or order is to that extent void and open even to collateral attack. Charles v. White, 214 Mo. 187, 112 S.W. 545, 21 L.R.A. (N.S.) 481, 127 Am. St. Rep. 674; Hope v. Blair, 105 Mo. 85, 16 S.W. 595, 24 Am. St. Rep. 366; State ex rel. McManus v. Muench 217 Mo. 124, 117 S.W. 25, 129 Am. St. Rep. 536." (2) "Where the shore line of two or more bodies of land divided by a water course receive accretions until they come together the line of contact will be the division line." Buse v. Russell, 86 Mo. 214; Hahn v. Dawson, 134 Mo. 591; Naylor v. Cox, 114 Mo. 232; Cooley v. Golden, 117 Mo. 48; Perkins v. Adams, 132 Mo. 131. (3) "Agreements as to boundary line need not be shown by direct evidence but may be shown by facts and circumstances, in determining which long acquiescence and recognition of the line agreed upon by the parties and their privies as a division line becomes a very important factor." Ernsting v. Gleason, 137 Mo. 598; Lemmons v. McKinney, 162 Mo. 532; Brummel v. Harris, 140 Mo. 430; Blair v. Smith, 16 Mo. 273; Nichols v. Tallman, 189 S.W. 1184.
H.P. Lauf and Irwin, Bushman Buchanan for respondents.
(1) The court did not err in including the 73.66 acre tract and the 81.44 acre tract in its judgment. Plaintiffs having introduced evidence to the effect that these tracts constituted a part of the land in dispute, may not now, in view of the statute of jeofails, complain that the judgment, including these tracts, is broader than the pleadings, which will be treated as amended to conform to the proof. Gilliland v. Bondurant, 51 S.W.2d 570, aff. 59 S.W.2d 679; Stottle v. C., R.I. P. Ry. Co., 18 S.W.2d 436; North Nishnabotna Drain. Dist. v. Morgan, 18 S.W.2d 439; Taylor v. Cleveland, C., C. St. L. Ry. Co., 63 S.W.2d 69; Weber v. Terminal Ry. Assn., 20 S.W.2d 603. Furthermore the title to these tracts of land was put in issue by the defendants' answer and counterclaim. A Counterclaim or setoff will lie in a quite title suit the same as under the general code. Clark Real Estate Co. v. Old Trails Inv. Co., 76 S.W.2d 393; Randolph v. Ellis, 240 Mo. 216. (2) And it is the law that lands conveyed by the county and described by metes and bounds, based on survey to low water's edge, are not agri limitati but are entitled to right of alluvion. Dumm v. Cole County, 287 S.W. 450; Frank v. Goddin, 193 Mo. 398. And the question of whether or not the survey and grant was to the water's edge is a question of fact for the jury, in this case a question of fact for the court sitting as a jury, and the court has found that issue for the defendants. Smith v. Wallace, 119 S.W.2d 819; Dumm v. Cole County, 287 S.W. 447. The plat accompanying the deed and which is made a part of the conveyance, shows the land bounded on the North, East and South by the Missouri River. The plat shows the courses and distances of the survey following the outline of the river. In such case the river becomes the boundary of the land. Gorton v. Rice, 153 Mo. 676; Jeffries v. East Omaha Land Co., 134 U.S. 178, 10 Sup. Ct. 523; Hardin v. Jordan, 140 U.S. 371, 11 Sup. Ct. 808; Braddock v. Wilkins, 75 P. 1139; Rue v. Oregon W. Ry. Co., 109 Wn. 436, 186 P. 1079; DeLong v. Olsen, 63 Neb. 327, 88 N.W. 512; Towell v. Etter, 69 Ark. 34, 59 S.W. 1096, 63 S.E. 53; Toppendorf v. Downing, 18 P. 247; Knudsen v. Omanson, 37 P. 250; Hayne v. May, 252 N.W. 740. (3) The evidence is insufficient to show that plaintiffs ever acquired title to any of the land in dispute by adverse possession. Badger v. St. L. S.F. Ry Co., 89 S.W.2d 959; Bell v. Barrett, 76 S.W.2d 396.
Edward Clark and Jane V. Clark instituted this action against William Heckerman and Pearl Heckerman to quiet title to two tracts of real estate in Cole county, Missouri, aggregating approximately 23.25 acres. The judgment adjudged title in defendants (describing the real estate by metes and bounds) in and to said 23.25 acres and also in and to three additional tracts, the latter aggregating, as we understand, approximately 155.10 acres.
I. Plaintiffs appeal, asserting, as their main contention the judgment is broader than the pleadings. Defendants say (a) the case was tried upon the theory that all the acreage covered by the judgment constituted the land in dispute and the pleadings are to be treated as amended by the proof, and (b) that the judgment is within the scope of their answer.
(a) In State ex rel. Anderson v. Hostetter, 346 Mo. 249, 140 S.W.2d 21, handed down May 7, 1940, a court of appeals' ruling that an instruction predicating a recovery on a ground of negligence not pleaded was reversible error was held by court en banc to be in harmony with previous rulings of this court. Court en banc said (citations only omitted): "It is quite true that in a number of cases we have held, complying with the mandates of Sections 817 and 1099, R.S. Mo. 1929, that where a petition states a cause of action but is defective in some particular, through the ommission of a required allegation which could have been inserted by amendment without changing the nature of the cause of action, and evidence is thereafter received sustaining such omitted allegation, no affidavit of surprise having been filed by the adverse party, the petition will be taken to have amended to conform with the proof. . . . But these cases are to be easily distinguished from one in which plaintiff, having alleged a certain definite basis for his cause of action, introduces, even without objection, evidence which tends to prove an entirely different cause of action. Under such circumstances we have held that the trial court is not authorized to submit to the jury an issue raised by such evidence but foreign to the issue pleaded. . . ." Among Missouri cases so holding are: Waldheir v. Hannibal St. J. Ry. Co. (Banc), 71 Mo. 514, 517; State ex rel. v. Ellison (Banc), 270 Mo. 645, 651(I), 195 S.W. 722, 723[3]; Gandy v. St. Louis-S.F. Ry. Co., 329 Mo. 459, 467, 44 S.W.2d 634, 637[6], citing cases; Friedel v. Bailey, 329 Mo. 22, 37, 44 S.W.2d 9, 15[12, 13].
Briefly of defendants' cases: The observations (dictum) of the majority opinion of the Court of Appeals in Gilliland v. Bondurant supporting defendants' contention (51 S.W.2d 559, 568[9-13]) were not approved but the observations of the dissenting opinion (51 S.W.2d l.c. 572) were approved by Division I of this Court ( 332 Mo. 881, 895[8], 59 S.W.2d 679, 686[10]) upon the certification of said cause here. A reading of Stottle v. Chicago, R.I. P. Ry. Co., 321 Mo. 1190, 1197, 18 S.W.2d 433, 435[2], indicates and a reading of the record therein discloses plaintiff's petition alleged that while deceased was performing his duties etc. — the fact asserted to have been omitted — deceased was injured. North Nishnabotna Drainage Dist. v. Morgan, 323 Mo. 1, 5(I), 18 S.W.2d 438, 439[1, 2], a condemnation proceeding, upheld an instruction authorizing the offsetting of special benefits against defendant's damages, although the petition did not plead special benefits. The issue of special benefits in a condemnation suit to take land under the power of eminent domain seeks, by way of set-off, to reduce the amount of the damages to be awarded and does not reach the essence of plaintiff's stated cause of action — plaintiff's alleged right to exercise the power of eminent domain — or, if conceded, defendant's right to damages. [Beck v. Dowell, 40 Mo. App. 71(I), affirmed on all points in 111 Mo. 506, 513, 20 S.W. 209, 210, 33 Am. St. Rep. 547, states that in personal injury actions evidence in mitigation of damages may be given under the general issue and that such was the rule at common law. See Boggess v. Metropolitan St. Ry. Co., 118 Mo. 328, 335(II), 23 S.W. 159, 161(2).] The ultimate holding in Taylor v. Cleveland, C.C. St. L. Ry. Co., 333 Mo. 650, 659[5, 6], 63 S.W.2d 69, 73[II (a), 7-13], was that the word "unnecessary," used in an instruction with reference to a stop by a train, was within the somewhat general allegations of negligence in plaintiff's petition.
Defendants would have us hold that evidence admitted without objection effects an amendment of a pleading so as to embrace subject matters of causes of action not therein mentioned. If, as held, evidence admitted without objection may piece out a defectively stated cause of action but may not effect an amendment of a pleading so as to permit a recovery on a ground not alleged, then a priori, evidence admitted without objection may not effect an amendment of a pleading so as to embrace subject matters of causes of action not therein mentioned. Southwest Land O. Co. v. Barnett, 240 Mo. 370, 375(I), 144 S.W. 780, 782[2-4], held erroneous a judgment adjudging title in plaintiff to land other than that described in plaintiff's petition. Waldhier v. Hannibal St. J. Rd. Co., 71 Mo. l.c. 518, observed arguendo that a plaintiff may not sue for a horse and recover a cow. One may not sue to quiet title to tract A and recover a judgment, valid in toto, adjudging title to tract A and also tracts B, C, and D.
b. We have held, as contended by defendants, counterclaims are proper in quiet title actions. Clark Real Est. Co. v. Old Trails Inv. Co., 335 Mo. 1237, 1243[3, 4], 76 S.W.2d 388, 391[6-8]; Crawford v. Amusement Syndicate Co. (Mo.), 37 S.W.2d 581, 584[5]; Randolph v. Ellis, 240 Mo. 216, 219(I), 144 S.W. 483[1, 2], among others.
Defendants' citations meet the issue only in a general way; and the contentions their pleading constituted a counterclaim and said judgment was within the scope of its allegations and proper seek the facts.
Plaintiffs' petition, with a prayer sufficiently broad for an adjudication of the rights, claims, etc., of the litigants in and to the real estate in said petition described, was in the usual form for an action to quiet title and specifically described the real estate in dispute by metes and bounds, locating 18.25 acres in the Southwest quarter of Section 21 and 5 acres in the Northeast quarter of the Northwest quarter of Section 28, all in Township 46, Range 13, Cole county, Missouri.
Defendants filed what they denominated an "answer." It was in one count. In substance, it read: "Come now the defendants and deny that the plaintiffs are the owners and entitled to the possession of all the land described in plaintiffs' petition, but say that they are the owners of the Southwest fractional quarter of Section 21," the North fractional half of the Northwest Quarter of Section 28, the South fractional half of the Northwest Quarter of Section 28, the Southwest fractional Quarter of Section 28, (aggregating 238.66 acres), township, range, county and state aforesaid; that said land was platted, said plat was recorded, and said land was sold by the County Court of Cole county, Missouri, to A.C. David and James David and by mesne conveyances became the property of defendants; that thereafter a large amount of land accreted on the northeasterly side of the defendants' land by reason of the gradual recession of the Missouri River; that thereafter "Henry Jones, County Surveyor of Cole County, Missouri," surveyed a portion of the accreted lands "and sold a part thereof to the plaintiffs on March 11, 1932, and a part thereof April 11, 1932, and a part thereof to A.E. Blaser, who thereafter conveyed 73.60 acres thereof to the plaintiffs on the 12th day of February, 1934; that a part of the land so surveyed out by the said Jones intersected and included therein and in said survey a part of the land which had been surveyed out and sold to these defendants and their grantors; that in truth and in fact, all of said land now claimed by the plaintiffs belongs to and is the land and property of these defendants by reason of having accreted to their shore line." Defendants prayed that the plaintiffs take nothing "and that that portion of the lands claimed by the plaintiffs lying north and westerly between the defendants' lands and the Missouri River, as laid out and surveyed to them and their grantors, be decreed to be the land of these defendants. . . ."
Section 1521, R.S. 1929, Mo. Stat. Ann., p. 1698, makes the code of civil procedure applicable to quiet title actions. Section 777, R.S. 1929, Mo. Stat. Ann., p. 1022, provides, with respect to pleading defenses and counterclaims, that "each be separately stated, in such manner that they may be intelligibly distinguished." Section 849, R.S. 1929, Mo. Stat. Ann., p. 1119, provides that a counterclaim "shall be deemed in law and treated as an independent action begun by the defendant against the plaintiff," except in instances, immaterial here, within Sec. 838, Ibid. [Emery v. St. Louis, K. Nw. Ry. Co., 77 Mo. 339, 350.]
Measured by these statutory provisions defendants' pleading was, as designated, an "answer," not a counterclaim." It contained no separate statement of defenses and counterclaims. It alleged that "a part of the land" surveyed by Jones included "a part of the land which had been surveyed out and sold to these defendants and their grantors" and that "all of said land now claimed by plaintiffs" was the property of defendants; and its prayer was restricted to "that portion of the lands claimed by plaintiffs." From said pleading it is apparent that plaintiffs did not claim all of the land mentioned therein and that only that portion of the land claimed by plaintiffs was involved. While there were allegations disclosing defendants could have maintained an independent action to quiet title to lands other than the lands mentioned in plaintiffs' petition if plaintiffs had claimed title thereto, the allegations were in answer to and for the purpose of defeating plaintiffs' asserted ownership "of all the land described in plaintiff's petition." (Lanyon v. Chesney, 209 Mo. 1, 9, 106 S.W. 522, 524; Smith v. Hurt (Mo. App.), 203 S.W. 625[1].) Defendants, availing themselves of the provisions of the last sentence of Sec. 1520, R.S. 1929, Mo. Stat. Ann., p. 1682, also asked that the title be adjudged in them. So far as disclosed by the pleadings the only land actually claimed by the plaintiffs was the land specifically described in plaintiffs' petition. While defendants alleged certain parties "sold" certain land to plaintiffs on given dates, there is no allegation that plaintiffs still claimed the land so sold. What we have said rules the issue and it is unnecessary to discuss the sufficiency of defendants' pleadings, unaided by plaintiffs' petition, to state, an independent cause of action by way of counterclaim or other contentions presented by plaintiffs bearing on the ultimate ruling.
II. Plaintiffs say defendants have only an undivided one-half interest in any land.
Louis Lister and J.W. Riner at one time owned undivided half interests in the 238.66 acres, the land first mentioned in defendants' answer. We understand that Lister and Riner, on March 15, 1923, executed two deeds of trust against the real estate, each of said deeds of trust covering an undivided half interest in said real estate, and that they were recorded on pages 418 and 419, respectively, in Book 13, Recorder's office, Cole county, Missouri. These deeds of trust do not appear in the abstract of the record.
On August 26, 1926, Lister and Riner conveyed to H.B. Garnett and Sylvia P. Garnett by deed containing the usual convenants of warranty, subject, however, "to a deed of trust of record in Book 13, page 418, Cole county Recorder's office, the amount of which is $4,300;" and on said date the Garnetts executed a deed of trust against said property to secure their three year, six per cent, $2,840 note, payable to said Lister and Riner. Said deed of trust recited that it was "subject to a deed of trust of record in Book 13, page 418, Cole county Recorder's office, the amount of which is $4,300."
There was testimony that the Garnetts abandoned the land; and, in order to secure title to the land, the Lister and Riner deeds of trust were foreclosed September 17, 1927. Delbert E. Matthews purchased under the foreclosure of the deed of trust in Book 13, page 418; and Louis Lister purchased under the foreclosure of the deed of trust in Book 13, page 419.
February 20, 1929, Lister conveyed "an undivided half interest" to A.E. Blaser. Thereafter, Blaser executed a deed of trust against his interest, which was foreclosed June 17, 1932. A.C. David was the purchaser.
Matthews and David, on August 18, 1934, conveyed to defendants.
Plaintiffs say Lister's purchase under his deed of trust constituted a payment thereof and any title he acquired passed immediately to H.P. Garnett and Sylvia P. Garnett; and, hence, defendants have title to only that undivided half interest in the 238.66 acres acquired through Delbert E. Matthews. They rely upon statutory provisions bearing on the use of the words "grant, bargain and sell" in conveyances (Sec. 3020, R.S. 1929, Mo. Stat Ann., p. 1867) and an after-acquired title by a grantor (Sec. 3107, Ibid.). This position ignores the fact that plaintiffs' action was instituted on January 4, 1938, more than ten years after September 17, 1927 (the date of Lister's purchase), and the ten-year statute with respect to actions for the recovery of lands (Sec. 850, R.S. 1929, Mo. Stat. Ann., p. 1121.) Defendants' answer alleged ownership and also the payment of taxes and peaceable possession, under claim of ownership, by defendants and those under whom they claimed since July 8, 1915. Plaintiffs advance no reason why the ten-year statute is not applicable and we are in no position to hold reversible error occurred.
This is an action at law. Plaintiffs, giving consideration to the ruling last made, admit the sufficiency of the evidence to support defendants' title to the 238.66 acres. They further state that the two tracts specifically described in plaintiffs' petition, aggregating 23.25 acres, constitute a part of said 238.66 acres; the 23.25 acres being within overlapping descriptions in deeds under which the respective litigants claim title. In these circumstances defendants should be permitted to hold their judgment covering said two tracts described in plaintiffs' petition; but with respect to the three additional tracts adjudged to be the property of defendants said judgment is beyond the scope of the pleadings and void.
The judgment, therefore, is reversed and the cause remanded with directions to enter judgment in accord herewith. Cooley and Westhues, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.