133 Mo. 267 | Mo. | 1896
This is an action of ejectment to recover possession of ten, acres of land in Harrison county. The petition is in the usual form, alleging the ouster in June, 1892. The answer was a general denial after an'admission of defendants’ possession.
At the trial plaintiff established a paper title to the land. Defendants then, to show color of title in themselves, read in evidence a deed from one Samuel Merrifield to James Merrifield, one of these defendants, to these and' other lands, bearing date March 17, 1871 (fourteen years after said Samuel Merrifield. had deeded the land in suit, with other lands, to plaintiff’s grantor). There was no controversy but that plaintiff had the better legal title, and defendants’ sole reliance to con
The case was tried by a 'jury under instructions from the court, and a verdict was found for defendants. After the usual preliminary steps, plaintiff prosecuted his appeal to this court. The errors assigned, are, first, the giving of improper instructions by the court on behalf of the defendant, and, second, that the verdict of the jury and the judgment thereon by the court were not justified by the evidence.
The testimony showed that the defendant James Merrifield lived upon a farm of five or six hundred acres, deeded to him by his father in 1871, from the time of the making of the deed up to the institution of this suit, and that he claimed as his own, up to the time that he contracted it to his codefendant Hammond, this ten acre strip, which was included in the deed to the home farm from his father in 1871; that defendant Merrifield’s farm was about two miles distant from this land, and that he on several occasions cut a few poles from this land and that he hauled the tops of trees cut down by him, to his home for firewood; also that he dug a few stones from the bluff alone a ravine running through the land and permitted two or three other persons to do so. No fence or other improvement was ever put upon the lands until within the past two or three years, and the only acts of control or possession of the lands to be observed by anyone was as above indicated. It might here also be said that the defendant Merrifield has paid the taxes due on this land for a number of years after he received the deed to it from his father in 1871.
There was no testimony tending to prove that plaintiff’s grantors were ever informed of, or had any knowledge of, the acts of ownership or claim of de
We think the evidence was wholly insufficient to show adverse possession by defendant under the ruling of this court in the case of Nye v. Alfter, 127 Mo. 529 (and cases 'there cited). Nothing was done on or about this land by defendants, until within the past three years, from which the true owner of the legal title could reasonably infer that an adverse occupancy or use of the land was asserted by anyone. Here the land was unfenced. No monuments were placed about it to indicate the boundaries of defendant’s claim, and no acts, other than such as the nonclaiming trespasser too frequently asserts to lands that are left uninclosed in this country, were done to show defendant’s adverse assertion of claim to the land.
The mere assertion of ownership by the acts above indicated would not be sufficient to invest title in defendant under the claims of adverse possession unless such acts and claims of ownership were known to the parties holding the legal title, and known to have been done under a claim of title adverse to his rights. The occasional cutting of firewood or the taking of rock from this land by defendant Merrifield and others by his permission, after the manner indicated by the testi
Possession to constitute a disseizin against the owner of the legal title, when not actual, must generally be so notorious by acts of assertion, that it may be presumed to have been known to the rightful owner. It should be so open and notorious that in passing by or over his lands the owner could not reasonably be deceived. Acts of ownership by others than the holder of the legal title should not be held sufficient to constitute adverse possession unless they were of such frequency and of such a character as would at all times apprise the real owner that his seizin was interrupted and that his title was endangered. Most dangerous results would flow from the permission by courts of titles by limitation to ripen, in favor of those holding mere color of title, without actual occupancy, by acts of ownership so slight in and of themselves as' not calculated to attract the attention of the real owner, or to indicate that his seizin (that follows his legal title) was interrupted. An occasional trespass by way of cutting timbers or digging a few loads of rock, is not sufficient to amount to an adverse assertion of title against the true owner, in the absence of express notice to the owner of such assertion of ownership by the trespasser.
The jury were evidently led to reach the verdict made by them under the directions of the first instruction given on behalf of the defendants, which read as follows:
“The court instructs the jury that the deed, read in proof, from Samuel Merrifield to defendant James*272 Merrifield, dated March 17, 1871, and recorded March 27, 1876, for the lands in controversy, and other lands, is sufficient to vest the title to said' other lands, therein named, in defendant, and is sufficient color of title to the lands in controversy. Therefore, if the jury shall find and believe from the testimony that the defendant took actual possession of any of the lands named in said deed by virtue thereof, then such actual possession of a part of said lands is possession of the whole.”
When possession of a part of a tract will operate as possession of the whole, is defined by section 6768 of our statutes as follows: “The possession, under color of title, of a part of a tract or lot of land, in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract so claimed, shall be deemed a possession of the whole of such tract.”
Defendants’ instruction ignores several elements, qualifications, and requirements of that provision. It says that if “defendant took actual possession of any of the lands named in said deed by virtue thereof then such actual possession of a part of said land is possession of the whole.” The statute speaks of one tract .of land and not of two or more tracts or parcels. This instruction further ignores the requirement, as provided by the statute, “of the exercise of the usual acts of ownership” by defendant over the tract in controversy to make his actual possession of a part operate as a constructive possession of the whole. The statute refers to one tract, body, or collection of land, and not. to all lands or parcels of lands that may be named in any one conveyance or deed.
Under this instruction it would make no difference-how widely separated the different tracts or parcels of land in one conveyance might be, or how independent of each other, or different in character their use, the-
For fourteen years before defendant Merrifield received his deed to this controverted strip, his father sold it to plaintiff’s grantor, and it had not been used for any purpose, in connection with the old homestead afterward deeded to defendant, nor taxed or burdened with as much as the giving up of a post or a foundation stone to support the old homestead or supply the needs of its occupants. Under the facts of this ease the strip could no more be said to be a part of the tract owned by the defendant Merrifield, than if it had been located in some remote part of the state on one of the sand bars of the Missouri, where it would have been impossible for defendant or his neighbors to have gotten either posts or pillars, firewood or foundation stone from it.
If the conveyance to defendant Merrifield of several tracts of land and the taking possession of any of the land named in his deed would operate to give him actual possession of the tract in controversy, what would become of plaintiff’s grantor’s actual possession of the same strip that he would have by reason of his possession and actual occupancy of a part of the land that was-deeded to him at the same time he was invested with the legal title to this land? By this instruction plaintiff’s grantor’s possession that follows his real title would be lost in the seizin following under defendant Merrifield’s color of title; a proposition that has