60 Mo. 33 | Mo. | 1875
delivered the opinion of the court.
This was an action of ejectment to recover a quarter section of land within the military bounty tract.
The plaintiff proved title by a regular chain from the patentee of the government, and the defendant relied on the statute of limitations.
On the trial the plaintiff introduced evidence tending to show that on the morning of the 26th of April, 1869, he went on the land in company with another person for the purpose of leasing the same to him ; that he went around it and found the corners, and stepped off forty acres and threw up at the corners small mounds. He did not succeed in consummating the lease, and whilst he was on the land, defendant and his teams came upon it and were ordered off by plaintiff. He told defendant that he owned the land and was there to take possession and forbid the defendant doing any work upon it.
Defendant claimed that his lessor, oneLombard, owned the land and forbade plaintiff improving it. Defendant’s teams went to work plowing on the lands and some of his hands
Defendant read in evidence, as color of title a deed from one Turner to Lombard for the land in question dated April 16th, 1869, for the consideration as therein stated, of one hundred and fifty dollars. He then gave evidence in reference to. his possession.
The cause was tried before the court sitting as a jury, and a judgment was given for the plaintiff.
The court gave, four charges or requests for the plaintiff which will be noticed.
, The one numbered four in the series, declared that “the' plaintiff having the legal title, the legal seizin and possession followed the title ; and that the defendant setting up an adverse possession against such legal seizin and possession, must show, by evidence satisfactory to the court, that he, or those under whom he claims, have had a visible, notorious and continuous adverse possession of the land in controversy, under claim of right, and color of title thereto, during the period limited by the statute of limitations, before the commencement of this suit, otherwise the statute of limitations is no bar or defence against such legal seizin and possession.”
The fifth request was that “if the court find from the evidence, that the plaintiff by himself, his agent or tenant, was in the actual possession of a part of the premises in controversy, as the legal owner of the same, within and during the time limited for the commencement of this suit, then the plaintiff had the legal possession of the whole of said premises, and could only be dispossessed thereof by actual ouster; that the
The sixth request declares that “to constitute adverse possession, so as to bar a recovery by the rightful owner, the party setting up such possession, must, in making his entry upon the land, and in acquiring such possession, act in good faith, under claim of right and color of the title thereto; and if the court find from the evidence, that the defendant knew when he entered upon the land that he had no legal title thereto, but knew it to be Bradley’s land, and knew that the plaintiff was in the neighborhood for the purpose of taking possession and looking after the land; that when the defendant made his entry he found the plaintiff upon the land, claiming ownership and asserting title; that he did his plowing and built his rail pen for the purpose of preventing plaintiff from taking or acquiring possession of the premises, knowing him to be the rightful owner, then such possession, so acquired, will not serve the purpose of a foundation for an adverse possession, so as to bar the right of this plaintiff to recover.”
The eighth declaration was that “if the court find from the evidence, that the plaintiff in June, 1871, as the legal owner of the land in controversy, peaceably and openly entered into and upon the same claiming to be such owner and intending to take possession of the same; that he made such
For the defendant the court declared the law to be; that the possession under color of title of a part of a tract or lot of land, in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract claimed, is deemed a possession of the whole tract.
The following declaration asked by the defendant was refused.
“If the defendant as the tenant of Lombard, under claim and color of title to the land in question, went into possession of a part of the same, in April, 1869, and for two years next ensuing, was and remained in the open, notorious and continuous adverse possession thereof, claiming the same for his landlord, Lombard, then the plaintiff’s right of action is barred ; and no entry will be sufficient or valid as a claim, unless made within the time in which an action may be brought for the recovery of such land, or the possession thereof; and if the plaintiff made an entry upon the land .in question after the defendant had been in the open, notorious and continuous adverse possession of the same for more than two years, then such entry was not sufficient or valid as a claim.”
An objection was raised to the introduction of one of plaintiff’s deeds in evidence, on the ground that it was not acknowledged in conformity with the law of the State of New York, where the acknowledgment was taken, or in accordance with the provisions of the statute of this State. The acknowledgment was taken before a justice of the peace in Delaware Coun
The fourth declaration, above alluded to in the plaintiff’s series, states the law with substantial correctness and is sufficiently clear. There is no doubt about the proposition, that where a person has the legal title, the legal seizin and possession follow the title ; and any one setting up or claiming under an adverse possession, must show that he or those under whom he claims, have had open, notorious and continuous adverse possession under claim of right or color of title for the period limited by the statute.
The fifth instruction is also unobjectionable. Where thp legal owner is in the actual possession of a part of the land of which he has the fee, the law invests him with the possession of the whole; and he can only be dispossessed by actual ouster; and a person entering on the land, not having the ■legal title, will be restricted in his possession to the part actually occupied or cultivated. The adverse possession of a disseizor, or of one who enters without right and retains possession by wrong, cannot extend beyond the limits of his actual occupancy. (St. Louis vs. Gorman, 29 Mo., 593; Schultz vs. Lindell, 30 Mo., 310; DeGraw vs. Taylor, 37 Mo., 310.)
The Statute provides that the possession, under color of title, of a part of a tract or lot of land, in the name of the whole tract claimed, and exercising during the time of such possession the usual acts of ownership over the whole tract so claimed, shall be deemed a possession of the whole of such tract (2 Wagn. Stat. p. 917, § 5). But this
. The 6th declaration requires qualification. Good faith may-become an important element, in certain circumstances, in reference to defining the limits of the possession, and showing that the possession itself was not taken -as a mere gambling speculation ; but the general principle undoubtedly is, that it is sufficient that the possession of the land be under a claim of title to clothe it with the character of an adverse holding, and to give it efficacy as a defense, when of sufficient duration to be a bar. The requisites in order to constitute an actual possession are that there should be made an entry, so that there may be an ouster effected and an adverse possession begun, and that he who sets up the title, must go upon the lands with a palpable intent, to claim the possession as his own The intent to claim and possess the land is one of the qualities necessary to constitute a disseizin and-to hold under an adverse possession. (Knowlton vs. Smith, 36 Mo., 507; 3 Washb. Real Prop. 125.)
The question now remaining arises out of the plaintiff’s eighth request. The statute limiting the time in which recoveries must be had,for the possession of real estate, limits the period to ten years., except in cases of military bounty lands where the limitation is two vears. (2 Wagn. Stat. p. 915, § 1.)
The second section of the limitation law provides, that “no entry upon any lands, tenements or hereditaments, shall be deemed valid as a claim, unless an action be commenced thereon within one year, after the making of such entry, and within ten years from the time when the right to make such entry descended or accrued.” This section is the same as it
The two years’ limitation, in respect to military bounty lands, was first imported into the statute in the present revision, and in applying the second section to this class of claims, the latter part may be rejected. The question then is, when must the entry, to be valid and effectual, be made ? The opinion of the court was, that the plaintiff had one year in which to make the entry after the two years had expired, or in other words, he might evade the bar of the statute and extend the time to three years, if he made the entry in time. "When the statute has once' run for the requisite time, it creates an estate, which cannot be divested by any act of the plaintiff. The entry to have any effect must be made with an intention to claim the property before the statutory period ■has expired ; this causes a break in the continued adverse possession of the occupant, and extends the time for the plaintiff to bring his action. In the very able argument made by the plaintiff’s counsel in this court, he has stated, that our law on this subject is the same as the law in Pennsylvania, and has cited cases to show that it is'construed there as contended for by him, and as held by the court below. But an examination of the authorities shows'that he is in error. In that State the period of limitation, required to bar an action for the recovery of real property, is twenty-one years. In the leading case of Altemas vs. Campbell, (9 Watts, 28) which is greatly relied on, Ch. J. Gribson in discussing the character and properties of an entry, uses the following language :
*43 “ In onr act of 1785 is comprised the substance of 21 Jac. 1 C. 16, under which an entry has always had its common law properties; and these have been attributed to it, under onr statute, by the ablest men in the profession. In 1803 when the statute was about to close its bar in rights of entry in existence at its enactment, the agent of the Penn family, under the direction of the late Edward Tilghman, caused entries to be made into the messuages and lots in York and Carlisle, for the preservation of the proprietary quit rents. Indeed the statute expressly recognizes the conservative properties of an entry alone, by treating it as alternative for an action. These properties, however, are purely technical and are not to be favored. An entry puts the owner, 'for a time, in actual possession ; and, as that, in the ease of a mixed occupancy, is referrable to him exclusively who has the right, it gives him, momentarily, the advantages of actual enjoyment; and, momentarily displacing the adverse possession of the occupant, it instantly undoes all that his intrusion had done towards the accomplishment of a title. Yet it must be perceived that this effect is subversive of the purpose of the statute, which is to compel parties to settle their controversies while the evidence of their rights is attainable, and to put a reasonable period to the evils of a contested ownership. By repeated entries within periods of twenty-one years a contest might be kept on foot interminably, or till the occupant’s proofs had perished, with those who could establish them.”
By this opinion it appears plainly enough that the entry, to have any effect, must be made within the twenty-one years— the duration prescribed to complete the bar. Any other interpretation is totally inadmissible, as when the full time of the statute has elapsed, the title is vested in the occupant and the right of action is gone, and whenever the right of action is barred, the right of entry is tolled. The court therefore should have refused plaintiff’s eighth request, and given the one for the defendant th^ asserted the converse proposition.
The plaintiff makes the further point in this court that the
When they a,re introduced in a cause they are liable to be rebutted by the opposite party by showing that they are incorrect, and that they are not in accordance with the original legislative rolls.
To allow thqpi to be used here for the first time in a proceeding of this kind, would be to make them conclusive evidence, and deprive the other party of all opportunity for his protection. Therefore the point will not he considered in the case as no\y presented.
The judgment must be reversed and tjie cause remanded.