| Mo. | Oct 15, 1885
This suit is by ejectment to recover the possession of three hundred and sixty acres of land in :Caldwell county. The answer is a general denial and also sets up the statute of limitations as a bar to plaintiffs? action. The trial wa,s had before the court without the intervention of a jury, and resulted in- a judgment for defendants, from which plaintiffs have appealed to this court. It appears from the record that John Middaugh had acquired title to the land in dispute in 1853 and 1855, by virtue of patents issued to him by the United ■States and by virtue of a deed from Reed, another patentee. That in 1859 and 1860 a number of judgments were rendered against said Middaugh by the circuit court of Caldwell county, upon which executions were issued in 1863, which were levied on the land in controversy, and it was sold to one Smith Adams who received a
Evidence was offered by plaintiffs in rebuttal tending to prove that the possession of John Middaugh had not been continuous ; that William Middaugh. after his purchase from Adams, claimed the lands; that John Middaugh had full knowledge of such claim, and resisted the same.- Plaintiffs also offered to show.that the land in controversy had always, from 1865, been assessed for
The court, after instructing that the various deeds, put in evidence in chief by plaintiffs invested them with title, and that they were entitled to recover, unless defeated by adverse possession of John Middaugh and defendant, Rogers, gave for plaintiffs, among other instructions not necessary to be noticed, the following instruction, viz:
“4. The plaintiffs having the legal title, the legal seisin and possession followed the title, and defendant, Jarvis S. Rogers, setting up an adverse possession against such legal seisin and possession based upon the proof of his own possession tacked to that of John Middaugh, commencing May, 1839, must show to the satisfaction of the court that John Middaugh had color of title to the land in controversy at the time of his entry in May, 1869, that he entered and occupied said lands in in good faith, claiming the whole tract, relying on his color of title as being the legal title to the same-; that his possession from the time of his entry was a visible, notorious, and continuous adverse possession in good faith under such claim, and right and color of title ; and that defendant, Jarvis S. Rogers, continued a possession of like character after he acccepted deeds from John; •the two possessions tacked making the period of ten*562 ."years before the first day of October, 1879, otherwise the .'Statute of limitations is no bar or defence against such 'legal seisin or possession.”
Objection is made to the action of the court in refusing instructions five and six asked by plaintiff, and inasmuch as the same objection applies to the action of the court in giving two instructions asked by defendant, in order to avoid repetition we omit those refused and insert those given for defendant which are as follows :
“The court deblares the law to be that the patent from the United States and the deed from Reed to John Middau gh are su fficient color of title, up on which to base an •adverse possession under the statute of limitations, and if the court finds that defendant and those. under whom he claims have had the actual, exclusive, open, notorious, continuous and adverse possession as against the plaintiffs and those under whom they claim, of any part of said lands in question, claiming the whole tract under such color of title for ten whole years next prior to the first day of October, 1879, then such adverse holding would vest the absolute title' in the defendant and the finding •m ust be for the defendant. ’ ’
‘ • If the defendant, Rogers, and those under whom he claims title to the lands in controversy, had, prior to-the bringing of the first suit of Eliza J. Beattie, et al., ■against these defendants, been in actual, open, notorious and adverse possession of the lands in controversy, or any part thereof under claim and color of title to the whole for more than ten years, the plaintiff cannot recover.”
These instructions are objected to on the specific ground that, after the sale and sheriff’s deed to Adams, the patents and deed held by John could not and did not give him color of title, even though he had been advised by counsel that his title was unaffected by said deed, and even though William Middaugh who claimed under the sheriff’s deed "well knew that John claimed' said
It is, also, insisted that'inasmuch as John Middaugh held a deed to one parcel of the land and two patents to. two other parcels, that his color of title only extended his possession to the tract on which the house was built and the field was enclosed. The land in question was a contiguous body, lying in sections six and seven, and the evidence tends to show that when John Middaugh took possession he had the entire body of land surveyed, fenced the north side of the southwest quarter of section six, built a house and enclosed about thirty-five acres in section seven, claiming the sheriff’s deed to be void, and all the land embraced in his patents and deed. This we think was sufficient to justify the court in instructing that the dolor of title extended his possession to the entire body
On the trial plaintiffs offered evidence to show that the land in controversy had been assessed for taxes to-William Middaugh from the year 1865 to date of trial. This evidence was rejected and in this we think the-court committed error. The assessment of the land and payment of taxes by William, and non-assessment of' the land to John, and non-payment of taxes by him, in the light of other circumstances tending to show a disclaimer of title, were important in considering the question of the good faith of John in entering on the land. Turner v. Hall, 60 Mo. 271" court="Mo." date_filed="1875-05-15" href="https://app.midpage.ai/document/turner-v-hall-8005019?utm_source=webapp" opinion_id="8005019">60 Mo. 271.
Judgment reversed for error above noted and cause-remanded,