Atchison v. Pease

96 Mo. 566 | Mo. | 1888

Black, J.

This is an action of ejectment to recover some eight acres of land off of the north side of a designated quarter of a quarter section. The plaintiff acquired this south forty-acre tract from W. Gr. Brown in 1882, who owned it as far back as 1870. A. D. Kellog owned the forty acres on the north in 1870 and 1871. In 1870 he sold. the land to Frank and Thomas Levitt and gave them a bond for a deed, which they assigned back to Kellog in 1874. In February, 1871, Kellog conveyed to B. F. Bergen, who, on the same day, made a deed of trust thereon to secure a debt therein described. B. F. Bergen conveyed to C. H. Bergen in July, 1872. The property was sold under the deed of trust in 1876 to Gruthrie and Gf-entry, through whom the defendant acquired title.

The evidence of Prank and Thomas Levitt is to the effect that there was a dispute between Brown and Kellog in 1870 as to the boundary line ; that they refused to buy the land until this dispute was settled; that Brown, Kellog and Prank Levitt went to the land, and then and there fixed and agreed upon a boundary line, different from that where the fence was then located. Their evidence is, that the fence was by them removed to this agreed line. This was done in 1870 or 1871. Other evidence shows that the defendant and those under whom he claims have cultivated the north forty up to this fence from 1870 or 1871 to the trial of this cause.

The adverse possession has been continuous. This suit was commenced in May, 1884. We held in the case of Jacobs v. Moseley, 91 Mo. 462, that where there is a dispute as to the true division line between adjoining proprietors, and they fix and agree upon a permanent boundary line, and take possession accordingly, the agreement is binding on them and those claiming under them. Such an agreement is not within the statute of frauds, and such facts may be shown in an action of ejectment, where the answer is a general denial only. The same doctrine is asserted in' the subsequent case of Schad v. Sharp, 95 Mo. 574. The evidence is abundant to show that the fence was placed on the compromise line in 1870 or 1871, pursuant to the previous agreement, and it makes no difference whether it was placed there by Kellog or the Levitts. It was placed there pursuant to the agreement, and since then it has been treated as the true line, and that is sufficient.

So too, if the line was- agreed upon by the owners of the two parcels in 1870, and the defendant and those through whom he claims have had and held continuous adverse possession up to it for a period of ten years before the commencement of this suit, then the statute of limitations is also a complete defense. A citation of authorities is not necessary to support so plain a proposition. The case was tried on these principles of law.

The evidence shows that in the defendant’s chain of title, there is a deed of trust made by B. P. Bergen in 1871, and that he conveyed to C. H. Bergen in 1872, and that there was a sale under the deed of trust in 1876 to Guthrie and Gentry. It is claimed that the possession of C. H. Bergen from 1872 to 1876 was adverse to the title-under which the defendant claims, but this is a misconception of the law. B. P. Bergen, though he made the-deed of trust, remained the owner of the land, and had a right to convey to C. EL Bergen ; and in the absence-of any proof to the contrary, the presumption is, that the possession of B. P. Bergen, the mortgageor, and of C. H. Bergen, who stood in his shoes, was amicable and not adverse to the rights of the mortgagee. The purchaser under the deed of trust succeeds to the possession of the Bergens, and that possession constitutes a part of the possession upon which he may rely to make out the ten years.

The judgment is affirmed.

Ray, J., absent, the-other judges concur.