12 F. 559 | U.S. Circuit Court for the District of Western Missouri | 1880
(charging jury.) The plaintiff, Larwell, brings this action to recover the possession of real estate in Kansas City, on which the defendant, Stevens, resides. To make out his case he presents sundry conveyances embracing the property in controversy. The objection raised on the introduction of these title papers having been overruled, it may be taken that they tend to show title in plaintiff, and, if the deeds are found to be genuine, vest the title in the plaintiff. To defeat the title of plaintiff, the defendant pleads the statute of limitations; that is, he says he has been 10 years at least in the actual, continuous, exclusive, and visible possession of the property sued for, and has thereby acquired such a right as will defeat .the plaintiff’s action. In the first place it is proper to call your attention, to the fact that the defendant must establish the fact of the possession claimed. The possession must also be adverse— that is, in hostility to the title of the real owner; for if the possession is held by mere indulgence and by consent of the owner, and the defendant understood this, and acquiesced, the possession is not adverse. A possession while so held cannot ripen info a title which will defeat the true owner of his right, because it is not adverse and hostile. As already stated, the possession, in order to avail the defendant, must be an exclusive possession; that is, he must not have held it within 10 years prior to the commencement of the suit,, in conjunction with one who was the real owner of it. If the real owner and the claimant of the possession, within 10 years prior to the bringing of the suit, had joint possession of the premises sued for, such a possession will not avail this defendant. The possession follows the title, and, if the owner and others are in possession, the law. considers the owner to have the possession. If you shall find from the evidence that this defendant was, at any time within 10' years prior to the bringing of. this suit, in joint possession with his son, and that the son was the owner, and claimed title to the property in controversy to the knowledge of the defendant, Stevens, then the plea is not good. The plea of the statute of limitations for the possession must be exclusive, and not joint, with one having the title to the property of which they are in joint possession. If you find from.
The jury returned a verdict for the plaintiff.