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Pullen v. Hart.

there be a common source of title (1) admitted, (2) assumed, or (3) proven, then in either case they can rest upon this common source, and make their proof of title from such common source forward. [Harrison Machine Works v. Bowers, 200 Mo. 1. c. 235; Nall v. Conover, 223 Mo. 1. c. 488.]

In this case there was no admitted common source of title, nor did the parties assume a common source of title. The whole trend of the trial shows that defendant was not proceeding upon the theory that there was a common source of title. In such case there is and can be no assumed common source of title. The question then is, have plaintiffs proven a common source of title? If they have not their case fails, because absent a common source of title (1) agreed upon, (2) assumed or (3) proven, they must trace their title back to its beginning. [Nall v. Conover, 223 Mo. 1. c. 488, supra.]

Under the status of the record in the present case, as discussed supra, it will suffice if all the evidence (plaintiffs' and defendant's) shows a common source of title. By common source of title we mean that both parties claim through the same person or persons. If one party claims through a single individual, and the other claims through two or more individuals (one of whom is the same through whom the first party claims) there is no common source of title. [Nall v. Conover, 223 Mo. 1. c. 494.]

We shall take the paper title of the plaintiffs first in determining whether or not there is a proven common source of title. Under plaintiffs' proof that common. source must be either Hunter himself, or someone in the proven chain after Hunter's first deed. This because plaintiffs started their record title with a warranty deed from William Hunter to R. B. Hart, After this deed to Hart from Hunter, it appears that Hart in an effort to perfect his record title procured the patent from Pemiscot County. When he got this patent from the county, his title then ran: United States to State of Missouri; State of Missouri to Pemiscot County; Pemiscot Coun

Pullen v. Hart.

ty to R. B. Hart. This it is argued was done by Hart under his deed from Hunter. It might have been so done, and it might not have been so done. Hart might have discovered that the Hunter deed (although a warranty) conveyed to him no title, and acted upon that theory. What showing he made to the county court is not before us, except as the recitations in the patent speak. This recitation is to the effect that Hart had acquired the equitable title of William G. Gray, who had bought and paid for the land. There is no showing that Hunter ever had this Gray equitable title. Nor is there a showing how Hart acquired it, save the bare recitation in the patent. It follows that neither the Hunter deed, the Hart application for a patent, nor the county patent itself, shows a common source of title as between these parties, plaintiffs and defendant Hunter. We are taking the instruments as we come to them. The effect of Hunter's warranty may become pertinent later. Up to the present point the plaintiffs' evidence fails to show a

common source.

The next link in the title is the trust deed back from R. B. Hart to Linn Hunter for the benefit of William Hunter, covering this land and other lands. Within itself it shows no common source of title.

Next we have the judgment of March 15, 1915, in the case of Timothy Pullen, Caroline Reynolds and Ellen Ransdale v. R. B. Hart, wherein it was found that these plaintiffs (who are the present plaintiffs) had an interest in this land. This conveyance, by judgment, might be urged as material in showing common source of title in Hart, but not otherwise. But does it do this? We think not. It was a suit to quiet title. The plaintiffs in such suit (plaintiffs here) were not claiming under Hart, but against him. Common source of title can not be shown in that way.

The next link is the interlocutory decree in partition obtained by the present plaintiffs against Hart on April 13th, 1916. This interlocutory decree in partition was never made final. It was abandoned, and the present suit

Pullen v. Hart.

filed. The interlocutory decree was never appealed from, and either party might have appealed from it, but could await the final decree, if they so desired. No final decree was ever entered. This is of but little value in plaintiffs' chain of title. It was based upon the decree to quiet title, supra, and was no more evidence of a common source of title than was the decree to quiet title.

The next link is the sheriff's tax deed in case of Pierce, Collector, v. Hart et al. This recites a tax judgment against a number of persons. William Hunter was sued, but not personally served. Plaintiffs were sued, but not personally served. John W. McFarland was the purchaser at this sale, and the interests, or alleged interests of divers persons passed to him by this deed. There was an order of publication, as well as a summons in this tax suit. This publication, among other things, recites: “. and shows to the clerk by said petition that among other things plaintiff verily believes that there are persons, and there are persons, interested in, or who claim to be interested in the subject-matter of the petition herein, whose names he cannot insert therein because they are unknown to him; that the interest of said. unknown persons so far as known to him, are derived from Silas Cummins, Horace S. Stephens, John M. Cummins, John T. Scott, John L. Rentch, the persons to whom the title to the east half of the northeast quarter of Section 10, Township 19, Range 12 east, and the northeast quarter of the southeast quarter of Section 10, Township 19, Range 12 east, the land described in said petition, was last transferred or vested, and that such unknown persons derive or claim to derive their title and claim to the land in question, as described in plaintiff's petition, as heirs, consorts, devisees, donees, alienees, immediate, mesne, remote, voluntary or involuntary grantees of the said Silas Cummins, Horace S. Stephens, John M. Cummins, John T. Scott, John L. Rentch.

"Whereupon it is ordered by the clerk in vacation that said unknown persons, to-wit, the unknown heirs, consorts, devisees, donees, alienees, immediate, mesne,

Pullen v. Hart.

remote, voluntary, or involuntary grantees of the said Silas Cummins, Horace S. Stephens, John M. Cummins, John T. Scott, John L. Rentch, and that the said nonresident defendants be notified by publication that plaintiff has commenced a suit against them in this court, the object and general nature of which is to enforce the lien of the State of Missouri for certain state taxes, county taxes, school fund taxes, drainage taxes, jail taxes and road taxes, all of which are delinquent, due and owing and unpaid in the sum of and for the years set out below.

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To say the least, this deed to McFarland is no evidence of a common source of title, because said McFarland was claiming title through divers persons, and it might be urged that he claimed some interest through plaintiffs themselves. But it suffices to say that his deed was basis for a claim of title through more parties than Hunter and Hart, and was therefore no evidence of a common source. [Nall v. Conover, 223 Mo. 1. c. 494, supra.]

The next link is a deed from McFarland to Hunter, which as evidence of a common ource of title can have no more probative force than the deed to McFarland. This because it transferred to Hunter the same diverse interests which McFarland received by his tax deed.

The plaintiffs' evidence fails to show a common source, barring the effect of Hunter's warranty deed, which we will take later.

V. The most vigorously made contention of the respondents, is that as Hunter made a warranty deed to Hart, he, Hunter, could not later acquire a good title for himself, but such good title, if later acquired, would inure to his grantee, Hart, or his grantees. It may be conceded, without deciding, if Hunter sold by warranty deed to Hart, at a time when he had no title, and later he procured from another the title, that such title would. inure to Hart, or his grantees, yet we fail to see how this helps the plaintiffs. They are not grantees of Hart.

Warranty Deed:
After-acquired

Title.

Pullen v. Hart.

Their only connection with Hart has been in suits against him, wherein instead of claiming through Hart, they claimed against him. The after-acquired title of Hunter would not inure to them under any circumstances made to appear in this record. The tax judgment under which Hunter bought in 1917, was against Hart, and the judgment in the instant case says Hart disclaimed interest in the land. Hunter, in fact, bought Hart's interest, as well as other interests, if any, at this tax sale. Would Hunter's purchase of Hart's interest inure to Hart under the warranty deed previously given? Hart did not think so when he disclaimed title, nor do we think the law so runs. It is the title procured from an outside source which inures to a grantee under a warrant of title, and not the title coming from the grantee himself in such waranty deed. However, this is beside the question, because these plaintiffs were not grantees of Hart, and no title could inure to them by reason of the warranty deed from Hunter to Hart. Hunter was no party to any suit wherein these plaintiffs were adjudged an interest in these lands, and of course was in no way bound by such judgments. As to these plaintiffs he was and is free to assert his rights, so far as the case made by them shows.

VI. The evidence for the defendant Hunter did not help the plaintiffs in the proof of a common source of title. Its general character we have mentioned. First it tended to show a record title from the Government to Hunter, including of course the tax sale against Hart. It further tended to show that plaintiffs' ancestors got their claim of title through a void sheriff's deed, and that plaintiffs were without title. So that the evidence of defendant did not help the matter of a common source of title. Nor does the rebuttal evidence, for plaintiffs, in the form of the records and deed in a tax proceeding, wherein Hunter and Howell were purchasers, and a deed from Howell to Hunter, assist the plaintiffs in proving a common source

No Common
Source.

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