173 Mo. 183 | Mo. | 1903
Ejectment for the west half of the northeast quarter of section 33, township 58, range 30, in DeKalb county. The suit was instituted August 3, 1898, and the ouster laid as of March 1, 1895.
The plaintiffs showed an unbroken chain of title from the patent of the United States, dated May 1, 1843, to themselves, and in addition, a tax title dated June 1, 1882, for taxes, as to the south forty, for the years 1870, 1873, ’4, ’5 and ’6.
The defendants introduced a tax title, dated May 27, 1868, for taxes for the year 1863, from the collector to J. B. Conley; a quitclaim deed from J. B. Conley to George Conley, dated April 11, 1870; a quitclaim deed from George Conley to B. F. Chisham, dated June 17, 1870, conveying the south forty; and a quitclaim deed from B. F. Chisham to Daniel Carp, dated July 14, 1870, conveying the south forty. The defendants are the sons of Daniel Carp, who lived on the land, from July, 1870, when he purchased it, until September 13, 1872, when he died. The defendants also claim title by limitation. 'The testimony shows that the land is most rough, poor land, with deep ravines and steep, rocky bluffs; that it was entirely denuded of timber.by the Hannibal & ‘St. Joseph railroad, the former owner, for cross-ties, etc., used in the com struction of its road in the winter of 1868; that a growth of small oak trees has since sprung up on the land, suitable only for fence posts and firewood; that Daniel Carp cleared and cultivated between three and five acres of the land, and lived on it in a cabin that was originally built by the wood-choppers who cut the timber for the railroad while it owned it; that when Daniel Carp died, he told his son John, one of the defendants herein, to
In April, 1885, defendant .Rufus Carp wrote to plaintiff Putnam about some land. The letter is not in the record, so it is not clear what land it referred to. Putnam answered saying if Carp referred to the land, in controversy here, he (Putnam) owned it and Carp had no claim on it, but he would sell it to him for $1,440.
The tax deed from the collector to J. B. Conley, dated May 27, 1868 (under which the defendants claim), recited that the land was assessed to John Buff, and that the collector had “advertised said real estate for sale according to law to pay and satisfy said taxes and the penalties.”
I.
The tax deed to Conley was void on its face, because it contained no recitals showing that all the statutory requirements had been complied with. The statement in the deed that the collector had “advertised said real estate for sale according to law, ’ ’ was a mere conclusion of the collector and not a recital of the statutory requirements which were necessary to give validity to the deed. ' [Burden v. Taylor, 124 Mo. l. c. 21; Loring v. Groomer, 142 Mo. l. c. 8.]
In addition to this, the land was assessed to John Duff, who never had any title whatever to the land. At the time of the assessment and sale the title was shown by the records to he fully vested in John L. Lathrop.
Therefore, that tax deed was insufficient to pass any title to Conley, and the defendants who claim under him got no title from him.
n.
The defendants, however, claim title by limitation, and invoke the Conley tax deed as color of title.
The defendants’ father went into possession in 1870, and held it until his death on September 13, 1872. This defendant, John'Carp, held the possession for a year and a half. This .accounts for possession until the first quarter of the year of 1873. Then it was rented for a year to Moore and Whittaker.' They left in the spring of 1874. Then it was. rented to Zercher; that is, until the spring of 1875. Then it was rented to Reed and then to' Estes, and then to Judd, but it is not shown how long they remained, respectively. About two years after that the house was torn down. Then there was no one on the land for a while, but the defendant, John Carp, cut fence posts and firewood and sold some timber.
. In 1879 or 1880 the defendant, John Carp, moved to Caldwell county, where he remained for two years. During that time neither he nor any one for him was in possession of the land and exercised no visible acts of ownership over it. The house was gone and nearly all of the fences also. In fact, from 1879 to 1884, none of the defendants appear to have done anything to show a claim of any kind. The land was vacant, practically unfenced and unimproved. The defendants were not in the visible possession of the land, and paid no taxes on the land between the years 1880 and 1891. In 1884 the brother and brother-in-law of defendant John Carp, got wood off of the land. In 1888 John Carp tried to lease it to Curtis. In 1890 John moved again to Caldwell county, and although he'paid the taxes for 1891, he exercised no visible acts of possession, and in fact, does not appear to have done anything about the land until 1892, when he leased it to defendant Hartford for a term of five years. The
The sum of the whole matter, therefore, is, that the defendant has shown possession of the land from July, 1870, to 1879, or the spring of 1880, and from 1879 or 1880 until 1884 there is a hiatus in the defendant’s possession. There is a further hiatus from 1884 to 1888, and from 1888, when John tried to lease to Curtis but failed, until 1892, when he leased to the defendant, there is another hiatus.
The result is that there is no evidence whatever in this record which tends to show that the defendants have ever been in the open, actual, visible, adverse, notorious, continuous, exclusive and uninterrupted possession of the land for a period of ten consecutive years.
The longest time that the defendants have shown any kind of possession was from July, 1870, until 1879 or the spring of 1880, and taken at its best this does not show ten full years. From 1879 or the spring of 1880, until 1892, when the land was rented to defendant Hartford, the defendants have shown only two acts that evidence ownership, to-wit, in 1884, when John’s brother and brother-in-law got wood from the land, and in 1888, when John tried and failed to lease the land to Curtis. There is no substantial evidence in the record showing that the defendants exercised any acts of ownership or set up any claim whatever and they were certainly not in the actual, open or visible possession during that time, and paid no taxes from
The defendants have therefore failed to show title by limitation.
The fact that the defendants have color of title in the void tax deed to Conley does not materially affect the case. Under the statute, Revised Statutes 1899, section 4266, possession, under color of title, of a part of a tract 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, is deemed possession of the- whole tract. But that does not apply here, for the defendants were not in possession of any part of the tract for the necessary period of time for the possession to ripen into a title by limitation.
The rule laid down by this court in construing this statute is thus stated in' Goltermann v. Schiermeyer, 125 Mo. l. c. 302:
“In cases like this, in which possession is taken in good faith, under color of title or claim of right, it is held that to constitute an adverse possession there need not be a fence, building or other improvement made. ‘It suffices for this purpose that visible and notorious acts of ownership are exercised over the premises in controversy for the time limited by the statute. [Draper v. Shoot, 25 Mo. 203.] It will be observed that this rule requires less to constitute adverse possession than is required of a mere trespasser and more than is required of one in possession of a part under color of title to the whole tract. All the authorities agree that the acts of possession must be visible and continuous for the requisite period in order to create the bar. [Sedgwick and Wait on Trial of Title to Land, secs. 735, 737.] It is not required that an act of possession should be done every day or month*193 or at any definite intervals, 'but they should be of such frequency and character as would at all times apprise the owner ‘that his seizin was interrupted, and that his' title may be endangered. ’ ‘It would be a new and dangerous doctrine,’ says Hough, J., in Turner v. Hall, 60 Mo. 275, ‘to hold that a possession under color of title may be discontinued after a year, or a month, or a week, and that, thereafter, the constructive possession of the land would follow the color of title instead of the true title.'’ Judge Bliss says in Musick v. Barney, 49 Mo. 463: ‘With the short limitation we have in Missouri, it would endanger property rights to permit a loose claim to land, with such acts of ownership only as might be exercised without attracting the attention of the real owner, and without actual occupation, to ripen into title.’ He says further that, ‘the indications of the claim and possession should be so patent that he (the owner) could not be deceived.’ In the cases of Leeper v. Baker, 68 Mo. 400, and Mississippi County v. Vowels, 101 Mo. 225, the adverse claimant had color of title to the whole tract, and actual possession of a part, and, therefore, constructive possession of the disputed tract, which only required the exercise of such acts as an owner of the whole tract would, under the condition, situation and character of the land, have exercised. [R. S. 1889, sec. 6768.]”
This case is cited and followed in Ward v. Ihler, 132 Mo. l. c. 382; Hedges v. Pollard, 149 Mo. l. c. 225, and Brummell v. Harris, 162 Mo. l. c. 405.
The same rule was reannounced in Herbst v. Merrifield, 133 Mo. 267, and in addition it was there pointedly and aptly said:
“Possession to constitute a disseizin against the owner of the legal title, when not actual, must generally be so notorious by acts of assertion, that it may be presumed to have been known to the rightful owner. It should be so open and notorious that in passing by or*194 over Ms lands the owner could not reasonably be deceived. Acts of ownership by others than the holder of the legal title should not be held sufficient to constitute adverse possession unless they were of such frequency and of such a character as would at all times apprise the real owner that Ms seizin was interrupted and that his title was endangered. Most dangerous results would flow from the permission by courts of titles by limitation to ripen, in favor of those holding mere color of title, without actual occupancy, by acts of ownership so slight in and of themselves as not calculated to attract the attention of the real owner, or to indicate that his seizin (that follows his legal title) was interrupted. An occasional trespass by way of cutting timbers or digging a few loads of rock, is not sufficient to, amount to an adverse assertion of title against the true owner, in the absence of express notice to the owner of such assertion of ownership by the trespasser.”
This suit was begun August 3, 1898, and as the plaintiffs have shown an unbroken record title, and as the defendants have not shown any valid record title, nor title by limitation, the plaintiffs were entitled to a peremptory instruction, and the trial court erred in refusing to give it as asked. The judgment of the circuit court is therefore reversed and the cause remanded to be proceeded with in conformity herewith.