Adolphus Meier brought ejectment for the following described land situate in St. Louis county, to-wit: The east half of the northeast quarter, and the west half of the northeast quarter of section 14, township 45. The petition was filed July 26, 1886, and after the usual allegations as to plaintiff’s ownership, and being entitled to the possession of the land aforesaid, contains this allegation:
“That, nevertheless, defendants on or about the -day of March, 1885, unlawfully entered in and upon a part of the said lands and took possession thereof, to-wit: The dwelling-house thereon and improvements incident and attached thereto, together with the southeast quarter of said northeast quarter of said section fourteen f 14) as, also, of the timber, pasture lands and uncultivated portions of the remainder of said northeast quarter of said section fourteen (14), and has ever since continued and still continues to wrongfully and*418 unlawfully withhold the said parts thereof from plaintiff, all to his damage in the sum of $500.”
Adolphus Meier having died pending this appeal, this cause has been revived by consent in this court in the names of his heirs.
The answer is a general denial — coupled with an admission of possession.
The evidence showed a clear paper title in Adolphus Meier, by reason of a deed of trust executed March 5, 1857, to Herman H. Meier as trustee of Adolphus Meier & Co., by Thomas J. Meier then in possession of, and the then owner of, the property, and the husband of Alvina, and the father of the heirs, his daughters ; and by reason of a sale such deed made March 31, 1858, by the trustee to Adolphus Meier.
Thos. J. Meier died in the spring of 1882, having lived on the premises in controversy continuously, except 1878, when he moved with his family to St. Louis, then moving back to the farm, remaining there until the next September, removing then to the Winkelmeyer or Barron place, on the Clayton road, where he .lived awhile, removing thence to the Gorman place, from which place he moved back with his family to the farm. During these absences, the other defendant, Cowan, her uncle, and aunt remained in possession of the place with his permission, and Cowan is still a tenant under Alvina and her daughters. The theory of the defense was the statute of limitations running in favor of Alvina Meier. Accordingly, a deed of trust dated the ninth day of April, 1857, recorded on the. .same day was introduced in evidence from Thos. J. Meier and Alvina, husband and wife, to Herman H. Meier as trustee, whereby the property in controversy was conveyed to said Herman for the sole and separate use of said Alvina, during her natural life, and, in case of .her surviving her husband, then for the use and benefit of her and her heirs, etc., etc. This deed, however, by a clause therein contained, was expressly made subject
Various acts also were shown on the part of Thos. J. Meier, which defendants claim amounted to an adverse holding on his part; as, for instance, leases executed by him to Thiemann in 1878, 1879 and 1880 for portions of the premises, for durations of two and three years; also that Thos. J. Meier had rented a portion of the premises to Thiemann and his father for twenty years off and on, as. well as to others; also that at various times, running back a period of about seventeen years, Thiemann and his father, at the instance of Thos. J. Meier, had cut cord wood in considerable quantities on the premises, on the shares. None of the leases were recorded and were but little more than brief memoranda of the lease having been made, and of its terms.
Testimony was also introduced to the effect that Thos. J. Meier had rails and fencing made on the premises; had built a cistern, had a new roof made on the dwelling-house, and built a new corn-crib, in 1870 and 1871; built smaller stables and out houses ; always rented the farm in his own name, collected the rent, and kept it, Adolphus Meier receiving none of it; and that Adolphus Meier, his brother, visited the family two or three times a year, coming out in his carriage in the morning and returning in the evening to the city, and that he never claimed the property till after Thos. J. Meier’s death. There was testimony also, that Thos. J. Meier voted at school meetings as a landowner; that he had employed an agent to sell the land about the year 1866; that, in 1881, he by deed granted to a railroad company the right of way through the premises, which deed was put to record in 1882 in St. Louis county in which the land lay, and further that he had frequently spoken of the farm to the neighbors as his.
There was no testimony that Adolphus Meier was aware that his brother made any claim to the property as his own; and, in rebuttal of that adduced by the defendants, the following evidence, in substance, was introduced: That Adolphus Meier had paid the taxes on the premises for years, and the receipts for taxes paid, and taken by Adolphus Meier in his own name, for the years 1871 to 1881, inclusive, were read in evidence. Herman H. Meier’s deposition was then read in evidence. He was a brother of Adolphus and Thomas J. Meier, and the trustee in the deed of trust aforesaid. He stated that, shortly after the sale made under the deed of trust, in 1858, Thomas J. Meier acknowledged to him that the ownership of the property was in Adolphus Meier. At that time Thomas J. Meier was then living on the place. Thomas J. Meier said also, at that time, “that farm is worth $16,000 at least.” He told Adolphus what Thomas J. had said, and Adolphus thereupon said: “Let them find a purchaser; I .shall be very glad to sell it, and, if they can get more for the farm than my claim comes to, I will make a present of the difference to Alvina Meier for the benefit •of herself and children.” “It was not to be touched by my brother, Thomas J. Meier, because he was then drinking very much.”
This conversation with Adolphus was soon after communicated by Herman to Thomas J. Meier, and the latter was told by Herman to try and find a purchaser for the farm. This conversation was repeated by Herman to Thomas J. five or six times, and several of those times Alvina was present, and witness remarked to her: “Alvina, I hope that the good intentions of Adolphus
He also stated that he knew Thomas J. Meier and his family lived on the farm by permission of his brother, Adolphus, and that they paid no rent; Thomas J. had often told him so, and told him, further, that his brother Adolphus “furnished the money for them to live by; ” and that, shortly after the deed-of-trust sale, everything that Thomas J. had of personal property was sold under an execution sale, and bought in by witness for the benefit of his brother, Thomas J., who never repaid him for the money thus expended.
This witness was then asked if he knew of any written acknowledgment by Thomas J. Meier to the effect that his brother, Adolphus, owned the farm. “Exhibit B” was then shown witness, and, in response to the question, he said that he knew of one, and that was this exhibit, which was in German, in the handwriting of Thomas J. Meier, and signed by him. This exhibit is spoken of in the record as being attached to the deposition, and as having been offered in evidence by plaintiff’s counsel, but it has not been preserved. This letter is also spoken of by counsel for defendants, in their abstract, as having been written in 1878.
A. M. Gardiner, an attorney at law, then testified as to the contents of a letter written" by Thomas J. to his brother, Adolphus Meier, which had been used by him as counsel for the defendants in the case of said Alvina Meier v. Henry Thiemann, wherein she, as plaintiff and the assignee of the claim of her daughters, brought an action of unlawful detainer against Thiemann for a portion of the land involved in this suit, under a lease made to him by Thomas J. Meier. This letter was translated, and its authenticity either proved or acknowledged at the trial of that cause, and read in evidence by both parties, not only in the circuit court, but in the court of appeals, and was in that court lost or mislaid, and, after diligent search, could not be found. The
Plaintiff then offered in evidence a letter, dated November 6, 1881, written by Thomas J. Meier to his sister, Cecilia, in which he says, among other things: “ Brother Adolph intends to sell the farm as soon as possible ; you may, perhaps, know that Adolph bought in the farm many years ago.” “Brother Adolph gives me $30 per month, and, with the product of the farm, I can barely make both ends meet by careful management. But, if brother Adolph should sell the farm, and he says he would do so rather to-day than to-morrow, I would not know what to do, for I could not possibly pay everything with $30.”
Other evidence was also offered by plaintiff, as follows : The affidavit for no process on the estate of Thomas J. Meier, deceased, made by defendant, Alvina Meier, on the seventh day of January, 1883, showing that, at the time, she estimated said estate to be worth $550, and to consist of the personal property exclusively.
The order of the court, made upon said affidavit, that letters on said estate be refused.
Also, the petition of appellant, Alvina Meier, and her three daughters, against Adolphus Meier, to quiet title to the land in question, filed March 26,1883, which alleges that Alvina Meier has a dower interest in the land, and that the three daughters are heirs at law, subject to the dower interest. Also, the record showing dismissal of said petition.
To rebut this evidence, the defendants introduced the following testimony: Johanna L. Meier testified that she saw her father write the letter to Adolphus Meier, referred to by Mr. Gardiner. Her father read it to her, and she took it to the city and mailed it. It was written in 1880 or 1881. He only requested Adolphus Meier to sell the farm for him as his agent, as Adolphus
Louisa Meier testified that she was at Clayton at the time of the trial, and heard the letter, referred to by Mr. Gardiner, read on the trial. She says that her father did not recognize Adolphus Meier as the owner of the land; that' he simply requested Adolphus Meier, as the owner of the land, to act as his agent in selling the farm ; and to reserve ten acres on the southeast corner of the land ; as it was a higher location, he preferred living there. He thought tit would be healthier there. He treated Adolphus Meier just as he did Mr. Denny, when he authorized him to sell it, i. e., as an .agent.
At the close of the testimony, the court, at the instance of the plaintiff, gave the following instructions: “1. The court instructs the jury that if they believe, from the evidence, that plaintiff acquired title to the property in dispute, by deed, from Herman Meier, trustee to plaintiff, dated March 1, 1858, introduced in evidence, then they must find for plaintiff, unless they believe the defendant is entitled to your verdict, by reason of title acquired by adverse possession, as explained in instruction, numbered 2.
“2. The court instructs the jury that one who holds the open, notorious, continued, uninterrupted, adverse and actual possession of real estate for the period of ten years or more, either through himself or tenants, acquires the legal title to the property as fully as if he had acquired the same by deed from the true owner. Therefore, if you believe that either Thomas J. Meier or his wife, during his life, acting through him and Ms widow, since his death, have held, either themselves or through their tenants, the open, notorious, continuous, uninterrupted, adverse and actual possession' of the*424 premises described in the petition, for ten consecutive years, at any time during the period commencing with the delivery of the trustee’s deed to Adolph Meier, read in evidence and ending with the institution of this suit, yon must find for the defendant.
“3. By adverse possession, as used in these instructions, is meant a possession indicated by such acts of possession and ownership exercised over the property as indicates to the world at large, including the owner of the legal title, that the party in possession claims the property as owner in his own right, and not subordinate to any other person. The possession must be such as to be hostile to, and inconsistent with, the right of ownership in the person who may hold the true paper title.
“4. Occupation of, and acts of possession and ownership exercised over real estate, as the agent or tenant, or by permission of another, is not adverse to such person.
“5 If the jury believe from the evidence, that Thomas J. Meier was in adverse possession of the property in suit, at his death, the continuity of the adverse possession was not interrupted, if such adverse possession was continued by Alvina Meier and the children of Thomas J. Meier, claiming the property as the widow and heirs of Thomas J. Meier.
“6. The court instructs the jury that where one takes possession of, and claims title as owner in good faith to, a whole tract of land, by virtue of a deed describing said land, that acts of possession and ownership over a part of the tract are acts of possession and ownership over the whole tract.
“7. The court instructs the jury, that, if the jury find the issues for the plaintiff, they will find that he recover of defendants the possession of the lands and premises in plaintiff’s petition described, and, against defendant, Alvina Meier, such damages as the jury may find from the evidence is the value of the rents*425 and profits of such, lands and premises, from July 26 1886, to the date of the verdict herein; and the jury will also find in the verdict, from the evidence, the monthly value of the rents and profits of said lands and premises.
“ 8. The court instructs the jury that Ellen Cowan, defendant herein, claims under defendant, Alvina Meier; and, if the jury find for plaintiff and against defendant, Alvina Meier, then they, the jury, must also find against said Ellen Cowan for possession, without any damages as against defendant, Ellen Cowan.”
And, on the part of the defendants, gave the following instructions: “1. If the jury believe from the evidence, that Thomas J. Meier and his family entered into possession of the land described under the deed from Michael Hardegen and wife, read in evidence, and held and occupied said tract of land until the time of the sale, on the thirtieth day of March, 1858, by Herman H. Meier, as trustee under the deed of trust, read in evidence ; that said Thomas J. Meier, with his family, continued in the open, continuous, notorious, uninterrupted, adverse and actual possession of said tract of land, either by himself and family or his tenants, claiming title to the whole of said tract of land, and after the death of said Thomas J. Meier, his widow and heirs continued in the open, notorious, uninterrupted, adverse and actual possession of said tract- of land either by themselves or their tenants, until the commencement of this suit, claiming title to the whole of said tract of said land, then plaintiff is not entitled to recover the portion of said tract of land sued for, and they will find for the defendants.
“2. If the jury believe from the evidence that Thomas J. Meier had the open, notorious, continuous and adverse possession of the premises in question, claiming them as his own hostilely to the plaintiff for the period of ten consecutive years, claiming said premises as his own, such adverse possession inured to*426 the benefit of defendant, Alvina Meier, and the plaintiff is not entitled to recover, and they must find for the defendants.”
Other instructions asked by defendants, but refused by the court, were the following: “3. If the jury believe from the evidence that Thomas J. Meier with his family did, under the deed from Michael Hardegen and wife to him, read in evidence, enter into possession of a part of the land described in said deed in the name of the whole tract, claiming title thereto, and continued in such possession from the time of so entering into possession thereof until the time of his death, and exercised during the time of said possession the usual acts of ownership over the whole tract; that, after the death of said Thomas J. Meier, his widow and daughters continued in such possession until the commencement of this suit, exercising during said time the usual acts of ownership over the whole of the tract so claimed, then they will find that said Thomas J. Meier and his widow and daughters had possession of the whole tract.
“4. The jury are instructed that the plaintiff is not entitled to recover possession of the premises sued for, unless he was seized or possessed of said premises within ten years before the commencement of this suit.
“5. The jury are further instructed, that the plaintiff ’ s right to sue for the premises in question, accrued immediately after the sale of said premises to him on the thirtieth day of March, 1858, by Herman H. Meier, as trustee, under the deed of trust read in evidence, and limitation commenced running from that time against the plaintiff, unless Alvina Meier acknowledged plaintiff’s title and held as tenant under plaintiff within ten years before the. commencement of this suit.
“6. The jury are further instructed that the possession of Thomas J. Meier, with Alvina Meier, of the premises in question, was in law the possession of Alvina Meier, and the statute of limitation commenced running in her favor against the plaintiff from the time*427 of the sale to plaintiff by Herman H. Meier, as trustee, on the thirtieth day of. March, 1858.
“7. If the jury believe, from the evidence, that Thomas J. Meier and his wife, Alvina Meier, were in possession of the land in question at the time when said Thomas J. Meier and wife made the deed to Hermán H. Meier, as trustee, for the defendant, Alvina Meier ; that they continued in such possession from said time until after the death of said Thomas J. Meier, and after his death the defendant, Alvina Meier, continued said possession by herself, or tenants, until the commencement of this suit; that during all said time said Thomas J. Meier, and said defendant exercised the usual acts of ownership over said premises ; that said possession was open, continuous, notorious, uninterrupted, adverse and actual during said time, or for a continuous period of ten years, then the plaintiff is not entitled to recover, and the jury must find for the defendants.
“8. The jury are further instructed, that the sale of said premises to the plaintiff on the thirtieth day of March, 1858, by Herman H. Meier, as trustee, under the deed of trust read in evidence, vested the seizin in said premises described in said deed in the plaintiff, and the plaintiff is entitled to recover the premises sued for, unless said seizin in the plaintiff has been divested by the adverse possession of Alvina Meier, or of Thomas J. Meier and his widow and daughters for ten years as defined in instruction, numbered —, or said Alvina Meier acknowledged the title of the plaintiff, and held said premises as tenant under him within ten years before the commencement of this suit.
“9. The jury are instructed that no act, declaration or admission of Thomas J. Meier can prejudice any right which the defendant, Alvina Meier, had or has to the premises described in the deed from Thomas J. Meier and his wife to Herman H. Meier, as trustee, for the defendant, Alvina Meier.”
“We, the jury, find that plaintiff is entitled to the possession of the premises described in his petition as follows, to-wit: The following described tracts and parcels of land situated in the county of St. Louis and state of Missouri, to-wit: The dwelling-house and all improvements incident and attached thereto situated on the northeast quarter of section 14, township 45, north of range 5, east. Also the southeast quarter of the northeast quarter of said section 14.' And also the timber, pasture lands and uncultivated portions of the remainder of said northeast quarter of said section 14. And we assess plaintiff’s damages for the unlawful withholding of the same at the sum of one dollar ( $1), against the defendant, Alvina Meier, and we find the monthly value of the rents and profits of said premises to be-dollars. F. L. Hastedt,
“Foreman.
“ We also find for plaintiff as against Ellen Cowan, without damages.”
I. The title of Thomas J. Meier to the property in dispute having been acquired in 1851, the only title his wife acquired was an inchoate right of dower; but even this inchoate right of dower was relinquished and surrendered in the deed of trust first mentioned, and any other right she may have acquired, by reason of the deed made in her favor to Herman H. Meier, was expressly made subordinate to the first deed, and, when the sale thereunder occurred, it swept away every trace of right or title which either she or Thos. J. had m the premises. Whenever a valid lien is in existence, its foreclosure wipes out of existence all titles subsequent in date to the first lien. Huff v. Morton, 94 Mo. loc. cit. 410.
II. These remarks are, however, based upon a theory of a valid sale under the deed of trust. That deed containing, as it did, a provision that if default occurred in the payment of any one of the notes, etc., that then
III. Objection was made in the trial court that the notice of the trustee’s sale does not specify between what hours the sale was to occur. The statute then in force, section 20,. page 1091, 2 Revised Statutes, 1855, which is identical with section 7091, 2 Revised Statutes, 1889, did not require that the hour of sale should be designated in the advertisement, and, when neither the statute nor the deed of trust require such designation, a failure in this regard will not invalidate the sale, if it be fairly conducted. 2 Jones on Mort. [4 Ed.] sec. 1846.
And even if the statute does require that the hour of sale be designated, and that it occur between certain hours, long acquiescence of the mortgagor in a sale where no hour had been specified, in one instance twelve years, was held to cure the defect and avoid the irregularity. Mernard v. Crowe,
IV. There was no error in receiving the testimony of A. M. Gardiner respecting the contents of the lost
V. Nor was any error committed in admitting the letter addressed to “ Dear Cecilia." That letter was as clearly admissible as would' have been the verbal admissions of Thos. J. Meier, made to any third person, and certainly far more reliable.
These letters written by Thomas J. Meier as well as the one testified to by Herman H. Meier, as “Exhibit D,” were declarations of a party in possession of real property and in disparagement of his title and explanatory of his possession, and were receivable according to the views generally entertained by the authorities. Greenl. Ev. [ 14 Ed ] sec. 109, and cases cited; Anderson v. McPike,
VI. And even if Thomas J. Meier at the time any of these letters was written was not in the actital occupancy of the premises, but was in possession of them by a tenant, his declarations would be of equal binding and disparaging force, as if made and uttered while in the actual possession of the premises ; the same principle would apply as well in the one case as in the other.
VII. And evidence of acts and declarations, made after the statute is claimed to have run, are admissible where they have a. tendency to show the motives and views of the declarant and the nature of his occupancy. Sedgwick & Wait on Tr. Tit. to Land [2 Ed.] sec. 758, and cases cited.
As stated by Judge Miller in Harvey v. Tyler, Wall. 349 : “There must be title somewhere to all the land in this country, either in the government, or in some one deriving title from the government, state or national. Anyone in possession, with no claim to the land whatever, must in presumption of law be in possession in amity with, and in subservience to, that title.”
There can be nothing clandestine or stealthy about adverse possession. The statute cannot be made to
In this case, as the first possession of Thomas J. Meier after the trustee’s sale was evidently permissive, in order to initiate a hostile holding against his brother Adolphus, it required some such positive and affirmative act as would at once apprise Adolphus of a change in the nature and intention of his holding. Nothing short of this would suffice. Angell on Limit, [6 Ed.] secs. 384, 385. There is no evidence of this sort to be found in this record. “In all cases where a party is in possession of land in privity with the rightful owner, nothing short of an open and explicit disavowal and disclaimer of a holding under that title, and assertion of title in himself brought home to the owner, will satisfy the law. Tyler on Eject., p. 876. The above quotation is approvingly made by this court in Budd v. Collins,
It is true that Thomas J. Meier gave leases and rented portions of the land from time to time ; and had cord wood cut on the shares ; but these acts were not absolutely inconsistent with his brother’s ownership in the land, especially so, if his brother let him have the land rent free and furnished the money on which he lived. Besides, it does not appear that Adolphus Meier was ever made aware of these acts of his brother, Thomas J.
X. The foregoing observations are sufficiently comprehensive in their scope to show that the instructions which the court gave at the instance of the plaintiff, and those given on behalf of the defendants, furnished a a full guide to the jury as to the issue joined by the pleadings, and to show that those instructions which the court refused to give were properly refused.
XI. The last point for consideration is the sufficiency of the verdict to support the judgment. On this point no doubt is entertained, since, though it might have been much shorter, it is regarded as sufficiently accurate-and comprehensive to embrace the land in dispute, and this is all that is required. Sedgwick & Wait, Tr Tit. Land, secs. 459, 498, 501. Buse v. Russell,