42 Mo. 106 | Mo. | 1867
delivered the opinion of the court.
The giving and refusing of instructions constitute the errors complained of in this cause. The defendant went into possession of the premises under Morton; and if he claimed to hold or possess them adversely to the Page title, it devolved on him to show at what time the adverse possession commenced. Whilst it is true that the statute of limitations is to be regarded as a statute of repose, a party relying on the statute, to be protected under it, must show such possession as will bring his case within its provisions. If the defendant’s title is not adverse, or under a claim of title for the requisite time, to be set up as a bar, there is nothing on which to invoke the aid of the statute. The instruction given on behalf of the plaintiffs tells the jury that the defendant, in order to prove a defense under the statute of limitations, must show that the possession set up as a defense was adverse to the plaintiffs, and those under whom the plaintiffs claim title; and that if, from the time of the execution of the deed from the sheriff of St. Louis county to Daniel D. Page, given in evidence by plaintiffs, such possession was not adverse to said Page, the defendant must show when it became adverse, and that such adverse possession of defendant commenced under a claim of title or ownership of said defendant as owning the same for at least tén years before the commencement of the suit, and so continued uninterruptedly and adverse to plaintiffs, and those under whom plaintiffs claim title, for at least ten years prior to the commencement of the suit.
The second instruction given for the defendant told the jury that if they believed from the evidence that, for a period of ten years and upward next before the commencement of the suit, the defendant had actual, visible, undisturbed, and continuous possession of the premises in question, claiming them as his own.
There is no such inconsistency in these two instructions as would be calculated to mislead, and taken together they declare the law correctly and in accordance with the doctrine established by the prior decisions of this court. There is nothing objectionable in the action of the court below in the answers given to the inquiries of the jury when they came into court for information. The additional instruction amounted to nothing more than a reiteration of the law as previously declared, couched in language more direct, plain, and comprehensible. Upon the whole case, we have failed-to discover any error.
Judgment affirmed.