Draper v. Shoot
25 Mo. 197
Mo.
1857
Check Treatment
Soott, Judge,

delivered the opinion of the court.

As the defendants claimed a portion of the premises in controversy by title, and relied on the statute of limitations as a complete bar to the plaintiff’s action, and there being a verdict against the plaintiff on the whole case, it is obvious *202that it turned on the statute of limitations, as that was the only defence made to the entire demand. This view of the record will relieve us of the necessity of inquiring into the propriety of the instructions relative to the acts set up by the defendants and alleged by them to confer a title to a portion of the lot in dispute ; for if the statute of limitations is a bar to the entire demand, there can be no need of inquiring whether the defendants had any other defence to a portion of the lot claimed by plaintiff. The instructions given in relation to the statute of limitations were sufficiently stringent against the defendants, as courts have rarely laid down the law more strictly against those relying on the bar of the statute of limitations than was done by the court below. There has been one mis-trial, and two verdicts have passed against the plaintiff on this issue, and it would seem needless to sxibmit the matter a fourth time to the jhxry.

There was evidence on which the verdict of the jury could be vindicated. Although our courts hold that an entry without color of title will enable the party in possession making it to defend, himself under the statute of limitations, yet an entry with a color of title may be supported by a less weight of evidence than a bare entry by an intruder under no claim of right. The person under whom the defendants claim actually performed the condition on which the lot was to become his property. The non-payment of the nominal consideration can not be shown to defeat a deed. (Meriam v. Harsen, 2 Barb. Ch. 267.) The circumstance that the deed was executed only by some of the proprietors is one of no weight, as the evidence abundantly showed that as against them all the original purchasers would have been entitled to a conveyance for the lot. After Mastorson had acquired a right to a title from those under whom he entered, their title failed, and a portion of them subsequently acquired a valid title to a tract on which the town was laid out, and he continued in possession in the manner stated by the witnesses, and never was disturbed by any one until Draper instituted this suit setting up title under a quit claim deed. And it is *203worthy of observation that it does not appear that Glasscock, under whom Draper claimed and who acquired title long subsequently to the entry of Masterson, ever had a conveyance for the specific lot in controversy, but claimed by a general description conveying a largo tract alleged to include the premises in dispute. The town existed only on paper; to invite settlers lots were granted on condition that they should be improved. The first title having failed, and some of the first proprietors subsequently becoming owners of a valid title, they may have been unwilling that the first bona fide settlers should be disturbed, or their sense of justice may have recognized the claim of Masterson.

As the statute proceeds upon the ground of the acquiescence of the owner of the land, visible and notorious acts of ownership must be exercised by the claimant, as otherwise there can. be no ground for such a supposition, when the acts are clandestine or of such a character as can impress no person with the belief that they proceed from a claim of ownership. It is no easy matter to say wliat is an adverse possession. It is a question compounded of law and fact, and every case in which it is involved must be determined by its own circumstances. What is adverse possession is one thing in a populous country, another thing in a sparsely settled one, and still a different thing in a town or village. The law, as stated by the Supreme Court of the United States, in the case of Ewing v. Burnett, 11 Pet. 53, and other cases, seems very appropriate to the circumstances of this case — that to constitute an adverse possession there need not be a fence, building or other improvement made ; and that 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 ; that much depends upon the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it; that it is difficult to lay down any precise rule in all cases, but that it may be safely said, that where acts of ownership have been done upon land, which from their nature indicate a *204notorious claim of property in it, and are continued sufficiently long, with the knowledge of an adverse claimant, without interruption or an adverse entry by him ; such acts are evidence of an ouster of a former owner, and an actual adverse possession against him, provided the jury shall think that the property was not susceptible of a more strict, or definite possession than had been so taken and held; that neither actual occupation, cultivation or residence are necessary where the property is so situated as not to admit of any permanent useful improvement, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim.

We do not maintain that the payment of taxes is evidence of an ouster of the true owner; but in a question of adverse possession, which depends on so many circumstances, such payment is a fact to be weighed by a jury in considering it. It would be an argument against one claiming to hold land, that he should for twenty years fail to pay the annual assessments upon it. If unexplained, such omission would certainly weaken the pretence that he claimed the land as his own, as such conduct is contrary to the course of men of ordinary prudence in relation to property to which they set up a claim. The payment of taxes may go to the jury with other circumstances, and this was a case in which such a fact was very appropriate for the consideration of the triers of the fact.

There was no error in permitting evidence to be received respecting the circumstances under which Masterson originally entered into the possession of the lot. There is no doubt that one who enters under an agreement to purchase can not set up the statute of limitations as a bar to an ejectment by the owner. His occupation, under such circumstances, will not be adverse to him by whose permission he entered. But if afterwards he asserts a title hostile to that under which he took possession for a sufficient length of time, *205with a knowledge of the owner, bis possession will be protected by tbe statute. But this is no sucb case. Masterson did not enter under an agreement to purchase. He shows his deed, not as conferring a valid title, but as evidence that he took possession under color of title.

Judge Ryland concurring,

the judgment will be affirmed ;

Judge Leonard absent.