221 Mo. 685 | Mo. | 1909
This is an action, to determine and quiet the title to the south half of section five in township 30, range 4, west, in Shannon county and containing three hundred and twenty acres.
The suit is brought under section 650, Revised Statutes 1899', and was begun March 29, 1904. At the September term, 1904, of said court, judgment was rendered in favor of the plaintiffs and against the defendant by default, and at the Mwch term, 1905, of said court, said judgment was set aside on petition
To sustain the issues upon his part, the plaintiffs offered in evidence a patent in due form from the United States to Joshua Spencer dated September 1, 1859, recorded April 13, 1873, in book 1, page 795, to the lands in controversy. Plaintiffs next introduced in evidence a warranty deed in due form from Joshua Spencer and wife to Joseph N. Boyce, dated August 1, 1860, duly recorded September 3, 1869, in recorder’s office of said county. Plaintiffs then introduced a warranty deed in due form from Joseph N. Boyce and wife to Daniel B. Dyer of date September 15,1869, recorded September 29, 1869, and re-recorded March 25, 1873. Plaintiffs then introduced a quitclaim deed from Daniel Dyer, a single man, to J. W. Chilton, to an undivided one-half of the said land, dated March 21,1904, recorded March 31,1905.. Plaintiffs then rested.
Defendants on their part offered in evidence a warranty deed in due form from Joshua Spencer to William E. D. March, dated January 2, 1875, recorded November 21, 1877, to the introduction of which the plaintiffs duly excepted at the time for the reason that the grantor had previously conveyed all his rights,
The defendant Comanianni testified that he was forty-nine years old, a coal miner and lived in Mur
A. E. McGrlashan testified that he had examined the tax records in regard to this land and the assessor’s books showed that the land had been assessed to William T. Ingram as far back as 1895, except in the last few years, when it was assessed to the defendant Comanianni, and these taxes appeared to have been paid.
Joseph Woods testified -that he lived in Shannon county and knew the defendant. The first and only time he ever saw him was in November, 1901, when he and Stewart entered into a contract with him- to cut the timber on this land. They cut it and it took them about two years to do so. They employed ten or fifteen men for the purpose. Witness put his mother in a little house on the place and she lived there about three years. The land is very rough timber land, the bluffs are the highest in the country, not more than an acre or an acre and a half of the land could be cultivated, possibly four or five acres in the whole half section. It was not suitable for pasture
John Lambert testified that he had lived in that county some two or three months and was acquainted with the land and with Dr. Ingram. Hesterly was the first man that he knew of making any improvements on the land and witness bought him out in 1895. He stayed on the land something like a year. He agreed with Ingram to deliver up to him the possession of the land. This witness testified that not more than ten or twelve acres could be cultivated on the whole tract and that only in patches.
F. L. Tyrrell testified he lived near the land in the year 1902. A man could not afford to fence the land for the grass that would grow on it. The creek overflows in the bottom land from hill to hill. The bluffs are very high. The land is only valuable for the timber that is on it.
This was about the substance of all the testimony.
On the part of the plaintiffs the court instructed the jury that the patents and deeds introduced by the plaintiffs in evidence showed the legal title to the premises to be in the plaintiffs, and unless the jury should find by a preponderance of the evidence that defendants have held such adverse possession of said
. I. The circuit court properly directed the jury that the patent and deeds read in evidence by the plaintiffs showed the legal title to the premises in controversy was in the plaintiffs, and that unless the jury should find by the preponderance of the evidence that defendants had held such adverse possession of the said land under claim of title as would be sufficient to divest the plaintiffs of their legal title, the verdict should be for the plaintiffs. And in order for the defendants’ possession of the land to be a bar to plaintiffs’ legal title such possession must have been
The real question confronting us in this case is whether there was sufficient evidence to submit to the jury the question of adverse possession under the ten-year Statute of Limitations, or the thirty-year statute. While ordinarily adverse possession is a matter of fact to be determined by the jury 'under proper instructions, nevertheless it has often been adjudged by this court that where the evidence was wholly insufficient to establish such a possession as the law requires to divest the title of the true owner, it is the duty of the court to declare as a matter of law that it is insufficient and take the case from the jury. [Brown v. Hartford, 173 Mo. 183.] We are thus necessarily required to examine the nature of the possession upon which the defendants rely to sustain the pleas of the Statute of Limitation, under either the ten or thirty-year statute. The defendant, Comanianni, claims under his grantor, Ingram. There is no pretense whatever that March “ or Bissel or Matheny ever had the slightest possession of the land in suit. Ingram testified that he lived in Murphysboro, Illinois; that he bought this land in 1876 from Matheny. He was asked what acts of ownership he exercised over the land while he claimed to own it, and he answered, “Paying taxes and having men to look after the land and the timber.” That he visited the land only once in his life and that was in the year 1895. He claims that he had an agent in the person of Mr. Carpenter, a farmer, who lived about two miles from the land, but Carpenter was not called as a witness to testify to any act that he did on or in relation to the land; in fact the only transaction that it is
“Q. Did yon yourself directly through Mr. Car-' penter or any other agent contract, agree and consent that Mr. Wood or some other man to build a house on said land and to cultivate the tillable land, to-wit, about one-half acre near the house? Ans. Yes, I think it was Mr. Wood, through Mr. Carpenter, agent.
“Q. When did you make said contract or lease?' Ans. I do not remember what year, sometime in the eighties. I suppose it was between Mr. Carpenter,, my agent, and Mr. Wood.”
But he testifies to' nothing definite as to who his tenant was, nor when, nor for how long a time, or any other fact which a court or jury could accept as. a basis of an intelligent judgment that he ever had actual possession of this land so open, notorious and exclusive that it would advise the real owner of such-possession and adverse claim. He also speaks of permitting a man to farm about one-third of an acre-across the creek from the house, hut he does not say as to this when that was, nor how long, nor in fact that the man ever actually cultivated this one-third of "an acre. In truth, the payment of' taxes on the-land and having an agent look after the land and timber was all that Ingram ever did. The evidence-that he paid the taxes was of the most unsatisfactory and inconclusive character as not a single tax receipt was offered and read in evidence, but conceding that he did pay the taxes and had an ag'ent to look after-trespassers, it has often been held by this court that this amounted to no more than evidence of a claim of ownership and did not constitute actual possession. This brings us then to the testimony of defendant himself. .;
As to the plea of thirty years limitation (Sec. 4268, R. S. 1899), the same infirmity inheres in the case as has been noted in regard to the ten years’ limitation, to-wit, any actual possession of the land by the defendant Comanianni. His complacent, failure to object to the occupation of the little cabin by Mrs. Woods, when he was ignorant of her occupying the house, falls far short of establishing a tenancy and an actual occupancy by him through her as his tenant, and his payment, of taxes and selling the timber to the tie choppers did not constitute actual possession. Counsel refer us to Holladay-Klotz L. & L. Co. v. Markham, 96 Mo. App. 56, to establish that the cutting of timber was evidence of adverse possession,, but the language of Judge Bond properly distinguishes the effect to be given such testimony, when he says of the “instruction wherein the court told the jury that * actual possession of the land with claim and exercise of rights of ownership, would entitle defendants to a verdict,’ we do not see how the jury could have been misled if they were capable (and we must assume they were) of distinguishing between mere entry to out and remove timber} and facts tending to show actual possession with claim and exercise of rights of ownership.” Obviously the learned judge did not regard the mere cutting and removing timber, disconnected with any other evidence of visible actual occupancy, sufficient to constitute adverse possession.
In our opinion the defendant has no actual possession and there was no substantial evidence to sub
The judgment of the circuit court is reversed with directions to enter a decree divesting defendants of all title to said lands and quieting the same in plaintiffs.