Miller v. Corpman. "United States v. Cornell, 25 Fed. Cas. No. 14867, p. 646, and 25 Fed. Cas. No. 14868, are further illustrative of the appropriate application of the rule. In these cases it is stated, in effect, that the purchase of lands by the United States for public purposes does not of itself oust the jurisdiction or sovereignty of the state over the lands so purchased; that exclusive jurisdiction is the necessary attendant of exclusive legislation; and, may we add, in the absence of the latter the former does not exist. We therefore overrule this contention. Finding no merit in the petitioner's application it is denied and he is ordered remanded to the custody of the respondents. Woodson, C. J., James T. Blair, Ragland, White and David E. Blair, JJ., concur; Graves, J., absent. ANNA V. MILLER et al. v. H. C. CORPMAN et al., Appellants. Division Two, December 29, 1923. 1. ACTION AT LAW: Findings of Trial Court: Appellate Practice. In an action at law to try title to real estate, tried by the court without a jury, its finding of facts, if supported by substantial evidence, is conclusive on appeal. 2. FAILURE TO RULE: Objection by Respondent. The hearing by the trial court of testimony offered by appellants, over objection of respondent and subject to a subsequent ruling thereon, and failure thereafter to make any definite ruling upon such objections, is a procedure often condemned; but it is a ruling of which respondent cannot complain on appeal. 3. TAX DEED: Wrong Description: Last Above Tract. Where the sheriff's deed, made in pursuance to a judgment for taxes, recited that he exposed for sale "the S. W. 4 of S. E. 14 of Section 28, in township 28, range 10, and the S. E. 4 of Section 36, in township 24, range 12; also . all of Section 28, in township 27, range 8," and then recited that "the said last above described tract was stricken off and sold," etc., his deed did not convey to the purchaser the tract first described, namely, "the southwest quarter of the southeast quarter of Section 28, in Township 28 and Range 10, and the grantee of such purchaser has no title, by reason of said deed, to said forty acres. 4. : Miller v. Corpman. : Color of Title. A deed which does not. describe the land and does not purport to convey it is not color of title. 5. DOWER: Limitations: Conveyance: Inheritance. Where the owner of land died in 1870 and his widow conveyed it to their daughter and only child by quit-claim deed in 1897, and said daughter died in 1914 leaving the plaintiffs as her only heirs, it is immaterial whether the widow's dower was barred by limitations, since, if she had no dower, the plaintiffs took by inheritance. 6. LIMITATIONS: Finding of Trial Court. A finding by the trial court, sitting as a jury, that defendant is not entitled to recover either under the ten-year or the thirty-year Statute of Limitations, both pleaded as defenses in the action at law to determine the title, if supported by substantial evidence, is conclusive on appeal. 7. POWER OF ATTORNEY: Unrecorded. A deed purporting to have been executed by the attorney-in-fact of the owner of land conveys nothing, where his power of attorney was not recorded, is not offered in evidence and is not shown to have been legally executed. 8. INCOMPETENT WITNESS: Power of Attorney: Deceased Maker. The grantee of a deed purporting to have been made by the attorney-in-fact of the owner of land is not a competent witness of any alleged conversation with said owner who is deceased at the time of the trial. 9. ANCIENT DOCUMENT: Power of Attorney: Recitals in Deed. Where the trial occurred in 1917, a deed purporting to have been executed in 1894 by the attorney-in-fact of the owner of land, now deceased, is not admissible in evidence as an ancient document. No power of attorney having been recorded, or offered in evidence or shown to exist, it cannot be presumed that recitals contained in the deed of the alleged attorney-in-fact as to powers conferred upon him are true. 10. TENANTS IN COMMON: Paying Taxes. The grantees by quit claim deed of an undivided half interest of the grantor in land, who take possession, do so as tenants in common with the heirs of said grantor, after her death, and hold and use the same and pay taxes thereon for their use and benefit as well as their own, unless said grantees take and hold possession under such circumstances as amount to ouster of said heirs. Appeal from Mississippi Circuit Court. Hon. Frank AFFIRMED. Miller v. Corpman. J. L. Fort and H. S. Green for appellants. (1) If Mrs. Burrus ever had a dower interest in this land her right was barred before she deeded the same to plaintiffs under her quit-claim deed. Jodd v. Mehrtens, 262 Mo. 391. There is no evidence that she ever had a dower assigned to her, and her right to have the same done was barred by the statute when she made the quitclaim deed to plaintiffs. R. S. 1919, sec. 359. (2) A void tax deed creates color of title. Dunnington v. Hudson, 217 Mo. 93. (3) The acts of defendants in selling timber off of this land were acts of ownership. Keaton v. Hamilton, 277 Mo. 540. (4) No action for the recovery of land, or the possession thereof, shall be commenced by any person unless it appears that plaintiff, or some person under whom he claims, was seized or possessed of the premises within ten years before the commencement of the action. R. S. 1919, sec. 1305. Acts of ownership under this section need not occur every day, but they should be of such frequency as to apprise the owners that his seizin was interrupted and his title in danger. Gordon v. Park, 202 Mo. 236; Robinson v. Claggett, 149 Mo. 152. The right to sue for land under this section is barred in ten years, except as to disability of minority, insanity, imprisonment and marriage, as limited in Sections 1307 and 1310. De Hatre v. Edmonds, 200 Mo. 246. Ignorance of right does not exempt one from the running of the statute. Farris v. Coleman, 103 Mo. 352. Color of title is not necessary to originate ownership by limitation. Quick v. Rufe, 164 Mo. 408. Adverse possession not only bars recovery, but vests perfect title in the adverse holder. Franklin v. Cunningham, 187 Mo. 184, 196. If one takes possession of another's land by mistake, claiming ownership, his possession is adverse. Mangold v. Phillips, 186 S. W. (Mo.) 988. The bringing of this suit did not arrest the running of the tenyear Statute of Limitations, because it did not seek to recover the land or its possession. Pepper v. Company, Miller v. Corpman. 281 Mo. 562. The taking of a deed from Walter Phelan, attorney in fact for Anna C. Jeffers and S. P. Jeffers, her husband, by defendants, for the land in suit, did not have the effect to suspend the Statute of Limitations from running against plaintiffs. Deck v. Wofford, 282 Mo. 564. (5) The thirty-year Statute of Limitations is a statute of repose, so that disabilities will not prevent its running. Nichols v. Hobbs, 197 S. W. 260. Acquiescence of plaintiffs, as record owners of the land, in the tax judgment, sale and deed, against the heirs of C. Alonzo Kitchen, for twenty-five years, is not entirely without significance, for the law rewards the diligent. Morrison v. Turnbaugh, 192 Mo. 427. Defendants acquired title to the land in suit before plaintiffs paid the taxes thereon and before the suit was begun or contemplated under what is known as the thirty-year Statute of Limitations. R. S. 1919, sec. 1311. Nonpayment of taxes need not be established by direct and positive proof, but may be inferred from other facts and circumstances. Rollins v. McIntire, 87 Mo. 496; Davis v. Dawson, 273 Mo. 499. The title of defendants vested ipso facto in thirty-one years if they had lawful possession for one year in that time. Campbell v. Greer, 209 Mo. 199; Grain v. Peterman, 200 Mo. 295. Lawful possession means that possession was obtained in a lawful manner. Laclede v. Epright, 265 Mo. 210; Brannock v. McHenry, 252 Mo. 1; Weir v. Company, 186 Mo. 389; Dunnington v. Hudson, 217 Mo. 93. (6) C. Alonzo Kitchen died in the year 1870, and at the time of his death Anna C. Kitchen, later Anna C. Jeffers, was his only child, and at the time the title first descended to her she was within the age of twenty-one years, and she failed to bring an action to recover this land until after more than twenty-four years after her cause of action accrued and plaintiffs, her children, failed to bring an action to recover this land for more than three years after the expiration of said twenty-four years, and, therefore, this action was barred under the provisions of Sec. 1307, R. S. 1919. De Hatre v. Edmonds, 200 Mo. 246. Miller v. Corpman. Disabilities are not cumulative; the statute begins to run. on removal of the first, regardless of the second, whether both disabilities exist in one or in different persons. Robinson v. Allison, 192 Mo. 366; Smelser v. Meier, 196 S. W. 25. (7) If an ancient deed shown to be otherwise competent recites an authority under which it purports to be executed, or recites facts equivalent to a power, the recital is prima-facie evidence of the authority, provided the recital shows the principal's name, and provided also acts of ownership have been done under the instrument. 1 Ency. Ev. 878. From the nature of the case, where the instrument is lost, the evidence of execution must often be partially or wholly circumstantial. Thus when otherwise competent, the act, declarations and admissions of the parties, the fact that such deed has been recorded, the long-continued and undisputed possession of the premises by the grantee claiming under the deed, and recitals in other deeds may, under proper circumstances, be competent evidence of execution. 4 Ency. Ev. 207; Wigmore on Ev., sec. 2144; Reuter v. Stackart, 54 N. E. 1014; O'Donnell v. Johns, 13 S. W. 376. The recitals in this deed of the power of attorney, the power of attorney being in the same chain of title, is competent secondary evidence of the existence of the power of attorney. 4 Ency. Ev. 213; Baeder v. Jennings, 40 Fed. 199; Carver v. Jackson, 4 Pet. 1; Grayson v. Laughlin, 52 S. W. 121; Dunn v. Eaton, 23 S. W. 163; Dosorris v. Campbell, 58 N. E. 1087; Deery v. Cray, 72 U. S. 795. This is clearly the deed of Walter Phelan, as attorney in fact, and of Walter Phelan, personally. Endsley v. Strock, 50 Mo. 508. The recitals in an ancient deed are discussed in Laclede v. Goodno, 181 S. W. 413. Where an instrument is ancient, and purports to have been signed by an agent, it may be admitted without producing the power of attorney. Wilson v. Snow, 228 U. S. 217; Anderson v. Cole, 234 Mo. 6; Wright v. Hull, 94 N. E. 813; 1 Ency. Ev. 860; 4 Ency. Ev. 187. An ancient 301 Mo.-38. |