Hunter v. Pinnell

193 Mo. 142 | Mo. | 1906

BURGESS, P. J.

— This is an action by plaintiff-appellant against the defendant, both of whom claim title to the tract of land described in the petition, to ascertain and determine the estate, title and interest of the parties, respectively, in such real estate. The suit is prosecuted under section 650, Bevised Statutes" 1899. Both parties claim title in fee to said real estate, the plaintiff by derivative title from the Government,' ánd the defendant by reason of the ten-year Statute of" Limitations, under color of title. The petition is in due form. The answer denies plaintiff’s title to the land,' pleads the Statute of Limitations, and prays that defendant may be decreed the owner of the land, and that all other claimants claiming under and by virtue of any patent from New Madrid county, Missouri, issued since' 1865, be declared forever barred from setting up or maintaining any claim in deed to said premises, etc.

The trial before the court resulted in a judgment’ and decree in favor of defendant, as prayed for in his. answer. Plaintiff appeals.

The land in question is what is known as swamp' land, and was patented to New Madrid county by the' State of Missouri, June 15, 1857, and ‘by New Madrid county to the plaintiff, Lee Hunter, on the 8th day of October, 1901. Defendant claims color of title to the-h*id, and title under the Statute of Limitations, and such color by reason of mesne conveyance from Albert Haynes and wife, who on August 15, 1856, conveyed, by warranty deed, said land to E. A. Lewis, and those claiming under him as follows: On the 28th day of October, 1856, said E. A. Lewis and wife conveyed said land, by warranty deed, to L. L. Phillips. .Said L. L^ Phillips and wife, on November 4, 1891, conveyéd the; same land, by warranty deed, to Parcillia Murphy, and she, on November 6, 1901, conveyed it, by quit-claim deed, to the defendant, W. W. Pinnell.

The evidence adduced by defendant showed'that, at the commencement of the suit, he was, and those under whom he claimed title were, in actual, open, notorious, continuous and adverse possession of the land, and claiming title thereto, for more than ten years.

Plaintiff concedes that section 4270, Bevised Statutes 1899, which provides that “nothing contained in any statute of limitation shall extend to any lands given, granted, sequestered or appropriated tq any public, pious or charitable use, or to any lands belonging to this State,” did not become a law until August 1, 1866, and where the right of entry accrued previous to that date the Statute of Limitations ran against lands mentioned in said section. The record shows that the land in question was patented to New Madrid county by the State of Missouri, June 15,1857, and that it has been in the actual, open, notorious, continuous, exclusive and adverse possession of defendant, and those under whom he claims title, ever since 1860. L. L. Phillips was then, through his tenants, in possession of the land at the time, if not before, and the Statute of. Limitations having begun to run in his favor, the possession of the land would not seem to have been abandoned by any of the persons under whom defendant claims title. Absence from the land temporarily, and without any intention of abandoning it for good, did not have the effect of breaking the continuity of possession. Moreover, this court has recently held that the statute quoted did not prevent section one, limiting actions to recover lands to ten years, from applying to swamp lands patented by the State to a county, while held and owned by such county when possession was taken before August 1, 1866. [Palmer v. Jones, 188 Mo. 163, and authorities cited.] It follows that plaintiff’s cause of action, if any he had, was clearly barred by the Statute of Limitation.

The judgment is for the right party, and should be affirmed. It is so ordered.

All concur.