109 Mo. 323 | Mo. | 1891
This is ej.ectment in which there was a verdict and judgment for defendant. The property sued for is described as fifty-five feet on St. Ange avenue extending back two hundred and sixteen feet to a width of fifty feet on Linn street, and bounded on the north by Park avenue, in the city of St. Louis. It is part of a triangular piece of ground containing one and twenty-hundredths acres, bounded on the north by Park avenue, west by St. Ange avenue, east by Linn street, and is known as city block 822. This city block is located in the northwest corner of block 2 of Charles DeWard’s survey of the St. Louis commons.
By the act of March 18, 1835 (2 Ter. Laws, p. 501) the mayor and aldermen of the city of St. Louis were authorized to sell the commons belonging to the inhabitants of the city at public auction, the purchaser to pay interest annually until the expiration of ten
The commons were laid off into blocks pursuant to this>act by what is called the DeWard survey; and on the twenty-eighth of January, 1836, the city passed an ordinance for the sale of the commons, and in the same year provided by another ordinance that grantees or purchasers should have the right to be substituted in place of the original purchasers.
Besides the act of the legislature, the DeWard survey and these ordinances, the plaintiff introduced the following evidence: First, parol evidence tending to show that Isaac W. White purchased this triangle at a public sale in March, 1836, accompanied with proof that no written lease or memorandum of sale to him could be found; second, the will of Isaac W. White, probated in 1841, in which he states that he purchased the triangle," and that two of his sons were to pay the arrearages due and to become due therefor, and by which he devised the property to his wife for life, remainder to his children; third, a deed from the city of St. Louis conveying the triangle to Sophia White, dated eleventh of March, 1848 — this deed does not set forth any recitals of a prior sale; the only recital being that the purchase price of $300 was paid by her; fourth, a deed from the children conveying the triangle to their mother, dated the thirteenth of May, 1853; fifth, the will of Sophia White, probated in December, 1858, and a deed by the executor of that will conveying the strip of ground in suit to Virginia Lount, one of the children of Sophia and Isaac White. This deed bears date the twenty-seventh of June, 1863, and was made pursuant to proceedings to which all the children were parties;
The defendant introduced the following evidence: First, a deed from the city of St. Louis to Frederick Dent, dated the fifteenth of March, 1837, conveying to Dent thirty-eight and fifty-four-hundredths acres of land; second, a deed from Dent to Patrick Dillon, dated October 26, 1837, conveying the same land; third, the will of Dillon, probated in 1851, devising his estate to Barton Bates in trust with power to lease and sell lands; fourth, a lease on the lot in suit from Bates, as trustee, to P. D. Tiffany, dated the first of January, 1857, for twenty years. This lease was surrendered to Bates, and by him accepted in 1875; fifth, a lease from Tiffany to Henry Prante, dated the twenty-ninth of January, 1857, extending to the first of January, 1860; also, a lease from Tiffany to Fritz Walkenhorst, dated the twenty-sixth of April, 1857, extending to the first of April, 1860. These two leases covered the property in suit; sixth, evidence showing the appointment of the present defendant as trustee in the Dillon will in the stead of Bates.
There was much other evidence produced by the one side and the other which will be noticed hereafter.
1. The plaintiff, it will be seen, holds under the deed from the city of St. Louis to Sophia White, dated the eleventh of March, 1848, while the defendant holds under the deed from the city to Dent, executed and recorded long prior thereto, to-wit, in March, 1837. It is conceded by the instructions given, at the request of the plaintiff, the appellant here, that if this Dent deed is valid, as to the land in suit, then it has priority over the deed to Sophia White. To show its invalidity the plaintiff produced evidence that, on the second of April, 1836, a committee on commons recommended a
Now, the deed to Dillon, executed by John F. Darby, mayor, describes the thirty-eight and fifty-four-hundredths acres as being in the survey of the commons, and also in the Mackay claim, and professes to have been made pursuant to a compromise made under the act of the legislature before mentioned. On its face it is a .valid conveyance. The specific objection made to it is that, in point of fact, the property in -suit is not within the Mackay claim, and, hence, the mayor had no right, under the resolution, to convey it to Dent. The evidence shows beyond all doubt that the land in question is a part of the land described in the Dent deed, and that it is also within the commons; but the evidence for the plaintiff tends to show that the south line of. the Mackay survey runs along the center of Park avenue, and, hence, that survey did not embrace this property.
On the other hand the evidence for the defendant tends to show that the south line of the Mackay survey ■is an established line, and that it runs fifty odd feet south of the south line of Park avenue, and, hence, includes this property, On this state of the evidence •the trial court could not, as a matter of law, say that the land in suit was not within the Mackay claim. Whether it was or not was a question of fact, and, hence, the court properly submitted this question to the jury.
It is next insisted that the court erred in excluding ■a resolution of the board of aldermen adopted on the
2. The next branch of the case arises out of the claim that Sophia White acquired title by twenty years’ adverse possession. On this issue the plaintiff produced evidence tending to show that Isaac White took possession of the triangle and built a brush and board fence around it in the fall of 1836; that he built a stable and slaughterhouse thereon in 1837, and that he used the property for such purposes until he died, which was in 1841; that in 1842 his sons built a brick house on the property for their mother, Sophia White; that she moved into the house in that year and continued to^ reside there until her death, late in the year 1858; that for years before her death she had leased the part in suit to persons for a brick yard, and through her tenants had possession up to the twenty-ninth of January, 1857.
It is enough to say of this evidence that it tends to show twenty years’ adverse possession in Isaac White and his widow, Sophia White, and that full instructions were given on this issue. The court, however, refused an instruction based on the theory of ten years’ adverse possession from and after the twenty-second of February, 1847, the date when our present ten years’ statute of limitations went into operation. The possession of Sophia White ceases on the twenty-ninth of January, 1857, as will be hereafter seen; hence, there could not have been ten years’ adverse possession from and after
3. This brings us to the effect to be given to an instrument by which Sophia White surrendered possession to Tiffany. The Dillon estate leased the lot to Tiffany for twenty years from the first of January, 1857. Tiffany, as has been said, made two leases, one to Prante, dated the twenty-ninth of January, 1857, and one to Fritz Walkenhorst, dated the twenty-sixth of the following April. Prante, it seems, then had possession under alease from Sophia White, and ,on the same day that he accepted the lease from Tiffany, he, Tiffany and Sophia White all executed a writing under seal, though not acknowledged or recorded, whereby she released Prante from so much of the lease held by him from her as covered this lot in question, and in which writing she says: “And I do hereby surrender and give up the possession of said strip to P. D. Tiffany, the lessee of P. M. Dillon’s estate, in consideration that neither •Tiffany nor the Dillon estate shall claim any damages of me for the occupancy thereof, nor for the land already excavated by said Prante, * * * it being understood that the object of this instrument is to legally surrender to said Dillon’s' lessee the possession of the ground above described, and to settle all claims against me by said Tiffany as such lessee of Dillon for occupying and excavating the same.”
Mary L. Durfree testified, at the instance of the plaintiff, that she was present when Mrs. White signed this paper; that Mrs. White was then an old lady, had been sick, and was sitting up that morning for the first time in a week oj more; that Tiffany came to the house and wanted her to sign a paper, which she at first refused to do; that she at last signed it, but she did so against her will. On cross-examination the witness stated that Tiffany made no threats of personal violence, but spoke
On this evidence the plaintiff asked, but the court refused, an instruction to the effect that if Tiffany induced or caused- Sophia White to sign the paper against her will, by threats or conduct which was calculated to and did overawe her, then the paper is void, and Tiffany acquired no right of possession thereby. On the other hand the court, at the request of defendant, told the jury that this paper was in legal effect a complete surrender of possession to Tiffany.
There is here no evidence of duress of person; for there is no pretense that Tiffany threatened any personal violence or injury. Nor is there any evidence of duress of property. Duress of goods, it is generally said, may exist where one is compelled to submit to an illegal demand or exaction in order to obtain them from one who has them in possession, but refuses to give them up, except on a compliance with the illegal •demand. Tiffany did not have any of her property in his possession, nor did he cause her to sign the writing by any threatened unlawful seizure or destruction of her property. The very most that can be said of this
We are cited to Davis v. Luster, 64 Mo. 43, where it is said courts of equity will relieve parties from contracts made under the influence of threats, though the threats do not amount to legal duress. But all this does not aid the plaintiff, for this is not such a suit. This property was occupied by the tenants of Tiffany' without any effort on the part of Mrs. White to remove them for several years; and some twenty months after the date of that instrument she made the deed to Walkenhorst in which .she refers to this property as belonging to the Dillon estate. Under these circumstances and after the long delay she would not be heard to complain even in a court of equity.
It follows from what has been said that the court did not err in refusing the plaintiff’s instruction. It was certainly the duty and province of the court to give the jury instructions as to the legal effect of the document, and, hence, there is no error in the instructions given at the request of the defendant on this branch of the case.
But it is further contended that the court erred in not leaving it to the jury to say when this written surrender of possession to Tiffany was in fact executed and delivered. As before said it bears date the twenty-ninth of January, 1857, and to aid the plaintiff it must appear that it was executed and delivered at a date subsequent' to the twenty-second of February, 1857, so as to admit of instructions on the theory that Mrs. White had ten years’ adverse possession after the act of twenty-second of February, 1847. The presumption is that the instrument was executed and delivered on the day
4. This brings us to that branch of the case wherein the plaintiff for title sets up ten years’ adverse possession in the Millards. Millard testified that he first knew the property in 1864, when he and Virginia were married; that he then found the lot vacant, except indications of an old brick kiln; that in 1865 he employed Walkenhorst to level up the lot and build a fence around it. In June, 1866, Millard and wife gave Walkenhorst a lease from, month to month, which sets out by way of recital that the lessee had leveled up the lot in December, 1865, and built a fence in 1866, and during that time held possession of the lot for the lessors.
The plaintiff, however, complains of the fifth instruction given at the request of the defendant, on the ground that it assumes that Walkenhorst never surrendered possession to Tiffany, and that the lessee attorned to the Millards whilst a tenant of Tiffany.
This instruction says, in substance, that, if. Walkenhorst took and retained possession under the Tiffany lease, then that lease required him to deliver
5. Complaint is also made of the following instruction given at the request of defendant: “The court instructs the jury that in order to .bar the true owner of land, by adverse possession of another, such adverse possession must have been known and acquiesced in by him for 'ten years, or else the possession under the adverse claim must have, been open and notorious, continuous and exclusive, for the requisite period of time as defined in other instructions.”
The objection made to this instruction is that it requires the adverse possession to be known and acquiesced in by the true owner for ten years to constitute a bar. What it says is that the adverse possession must have been known and acquiesced in by the true owner, or it must have been open and notorious, continuous and exclusive. The idea which the instruction conveys is that a possession which is adverse and also known to the true owner is equivalent to a possession which is adverse and also open and notorious. This we think is a correct statement of the law. The
The same principle is again mentioned with approval in the recent case of Allen v. Mansfield, 108 Mo. 343. A possession, we conclude, which is adverse and known to and acquiesced in by the true owner for a period of ten years, will bar the true owner under the-statute of limitations.
Without pursuing all the minor objections, it is: sufficient to say that we have examined this long record, with its complicated facts with care, and see no reason, why the judgment should not stand. The judgment is?/ therefore, affirmed.
