Long v. McDow, 87 Mo. 197

Long v. McDow

87 Mo. 197 | Mo. | 1885

Sherwood, J.

Plaintiffs, who are husband and wife, sue in ejectment for the one-third part of the southeast quarter of section eighteen, township forty-two, range sixteen, lying in Morgan county, Missouri. Ira Nash, a former resident of Boone county, was the father of three children, Neppy, who married Isaac Jeffries ; Alpha M., who married John McDow, and Zarada Nash, who married Greene Hutchings. The issue of this last marriage is the plaintiff, Caroline Long, who married her co-plaintiff and husband in 1836, and removed with her husband to California in 1850, where they have since resided. Neither she nor her husband was ever on the lands in dispute, or knew till about two; years prior to suit brought that McDow and wife claimed adversely to them. The defendant is the son of John and Alpha McDow, who died pending this suit, and *200were the original defendants therein, and who moved oh to the land in dispute and took possession thereof in the year 1854, some twenty-five years prior to the bringing of this ejectment. The defendant, as well as two sisters, still remains in possession of the land, and this possession has been continuous from the time of its inception! Ira Nash died, it seems, about the year 1845, and the parents of the plaintiff,. Caroline, are also dead. The defendant admitted possession of the premises, but, pleaded the statutes of limitations of ten and of twenty*! four years, claiming adverse, .open and notorious p,osses-\ sion of the premises for that length of time. The plain-' tiffs replied by a general denial and with a plea, of coverture.

To maintain the issues on their part the plaintiffs read in evidence a patent from the United States to •“ H. San Ári ” for the land in controversy. This patent bore date June 5, 1841. They also introduced Hiram Man* . dole, who testified that he had heard of an eccentric man by the name of Ira Nash, who lived in Boone county; that in 1842 or 1841 a man came to his house, told him his name was Ira Nash, and that he had entered the land in dispute in his own name, “spelled backwards.” Mandóle also testified that he knew Nash when he.came, from what he had heard of his eccentric ways. By this witness, as well as by other witnesses for plaintiffs, was established the other facts already narrated. No objections were interposed to the introduction of any of the foregoing evidence.

At the close of plaintiffs’ case the-defendant asked and the court gave an instruction in the nature of a demurrer to the evidence, Avhei;eu^fÓii the plaintiff took a non-suit, and, aft<|r vainly moving to set the same aside, sued out the present writ of error. The sufficiency of 7 the evidence to authorize the cause to be submitted to the jury is the only question the record presents.

And, first, as to the patent already mentioned. The *201possession of this patent, its genuineness not being questioned and coming apparently from the proper custody is, when taken in connection with other circumstances to be presently mentioned, some evidence of title in those persons in whose possession it was found. Thus, it is said by Starkie: “It is everyday’s practice to prove the title of A B to an estate by proof of the execution of a conveyance by C D, a former owner in possession of the estate.” Starkie Evid. 472. As the grantor, in this case, is the United States government, the paramount source of all title in this country, its possession of the land patented, and title thereto at the time of the issuance of the patent will be presumed. At one time it wasi ruled that corresponding enjoyment or possession of the! property mentioned in the ancient deed or instrument] was indispensably necessary; but the weight of author-! ity is now clearly the other way, and such instrument' having nothing suspicious about it is presumed genuine! without express proof; and if found in the proper cus- \ tody, and where proof of possession cannot be had, the , deed or other instrument may be read in evidence. 1 (xreenl. Evid., secs. 20 and 144, and cases cited. In this case, as already noticed, the genuineness of the instrument passed unchallenged at the hands of the defendant. Besides, as the land was entered from the government by a non-resident of the county, who died in about four years after the patent issued, it is a reasonable inference that the land was wild land, and, therefore, proof of actual possession and enjoyment by the patentee was, in one sense, impossible.

Now, as to the name of “H. San Ari,” contained in the patent. The evidence establishes that Caroline Long, the plaintiff, and Alpha McDow, as well as her son, the present defendant, are heirs of a common ancestor, Ira Nash. If John McDow and Alpha, his wife, entered on the land in controversy, without any claim of title, this would make them trespassers ; but such an act the law *202will not presume. On the contrary, it will rather presume that the entry of McDow and wife was innocent and lawful, which only could be if their entry was made as claiming under Nash as the common ancestor. Taking this to be true is but to presume that the heir will claim title through his ancestor, rather than through a wrongful and unwarranted entry on the land of a stranger. If this position be the correct one, then it follows that the declarations of Ira Nash, as to his manner of entering the land in the name of “H. San Ari,” bind all those claiming under him in the present case, they being privies both in blood and in estate with him, thus making his declarations respecting the property in litigation and the manner of its acquisition of equal potency as if made by the defendant to the present record. 1 Greenly Evid., sec. 189 ; Guy v. Hall, 3 Murphy (N. C.) 150 ; Dufield v. Oross, 12 Ill. 397. In which event but one-opinion as to the effect of suCh declaration could be entertained. Indeed, it may well be assumed, if the presumption of law in favor of the rightful nature of every act be borne in mind, that the taking possession of the land in suit by McDow and wife was but an instance of family conduct; an evidence of family tradition ; a tacit recognition of relationship, and of the devolution of projjerty, from which the opinion and belief of the family may be inferred. 1 Greenl. Evid., sec. 106. And ia this connection, and in support of the foregoing views, it should be remembered that the evidence establishes-that Ira Nash lived in Boone county, and that identity of name is prima facie evidence of identity of person. State v. Moore, 61 Mo. 276.

I pass now to the consideration of the only other point in this case pertaining to the sufficiency of the evidence to authorize its being submitted to the jury. Although the evidence shows that the land in dispute had been occupied for over twenty-four years at the time of suit brought, yet it does not appear what the nature of *203that possession was. If the deduction heretofore made-from the evidence adduced be correct, then the defendant and those under whom he claims must be regarded as tenants in common of Caroline Long ; in which case the entry of Me Dow and wife on the premises and their possession thereof will not be esteemed prima facie adverse to their co-tenants, but in support of the common title ; and their possession and seisin, the possession and seisin of the others. Cruise’s Dig., Tit. 20, sec. 14. In all such cases the rule seems to be that the act of the co-tenant, his adverse possession, must be a public one, one totally irreconcilable with the co-tenancy of another. The authorities on this subject a,re well settled in this state. Warfield v. Lindell, 30 Mo. 272 ; s. c.,. 38 Mo. 561; Lapeyre v. Paul, 47 Mo. 586.

The evidence in this case is not of such a nature as-to overcome the presumption ordinarily prevailing between tenants in common, where one takes possession of the property owned by all. Something more than mere possession is necessary, as is shown by the authorities-cited.

For the reasons aforesaid the cause should have been submitted to the jury, and the judgment will, therefore, be reversed and the cause remanded.

All concur.