Mississippi County v. Vowels

101 Mo. 225 | Mo. | 1890

Brace, J.

This is an action in ejectment'instituted in December, 1883, to recover the west half of the northwest quarter of section 16, township 26, range 17; in Mississippi county. The facts are undisputed.' The tract was a part of the school lands of said county. The defendant is the widow of Henry Yowels who died in 1867. In the early part of the year 1864, Henry Yowels moved upon this tract, which was timber land and in a state of nature, built a house, cleared and inclosed all of it, that was susceptible of cultivation, about sixty acres, and with his family continued from that date to reside upon and cultivate the inclosed land, using the uninclosed woods land in connection therewith for rails and wood, up to the time of his death, and since his death his widow, the plaintiff, and her minor children have continued to so reside upon, use and occupy said land uninterruptedly until this suit was brought. Yowels in his lifetime claimed to have bought the land from one. Donnelly or his heirs. The land before being improved was worth four or five dollars per acre. The value of the improvements put upon it by Vowels was about one thousand dollars. At the time of his death it was worth less than fifteen hundred dollars. At the close of the evidence the court instructed the jury that under the pleadings and evidence the plaintiff could not recover, whereupon the plaintiff took a nonsuit, and the court afterwards refusing to set the nonsuit aside, the plaintiff appealed.

I. There was no error in the admission of the declaration of Vowels, deceased, that he had purchased the land. “The tendency of recent adjudications is to admit explanations of a possessor of property as to his title, not with a view to set up such title, but to show whether his possession was adverse under the statute of limitations or otherwise.” Martin v. Bonsack, 61 Mo. 556.

II. The entry of Vowels was made under the statute of 1847 (2 R. S. 1855, chap. 103, art. 1), and it has been repeatedly held that that statute runs against the legal title of the state, a county and a municipality to lands held for public use, and that the statute of 1865 ( R. S. 1879, sec. 3227) is prospective in its operation and does not apply to cases where the right of entry accrued before it was enacted. County of St. Charles v. Powell, 22 Mo. 525; Callaway County v. Nolley, 31 Mo. 393 ; Abernathy v. Dennis, 49 Mo. 468; School Directors v. Georges, 50 Mo. 194; McCartney, Adm'x, v. Alderson, 54 Mo. 320; Wichersham v. Woodbeck, 57 Mo. 59 ; Conn. Mut. Life Ins. Co. v. St. Louis, 98 Mo. 422.

III. For a period much longer than required to confer title under the statute of limitations, before this suit'was brought, Vowels and his family were in the peaceable, open, notorious, continuous, exclusive, adverse possession of the premises, residing upon it, cultivating the sixty acres that were inclosed, and using the remaining outlying woods land not susceptible ■ of cultivation in connection with the inclosed land as a homestead, making just such use of it, as it was adapted to and as was necessary, usual and customary to owners, of homesteads, who like him had no other land. Such use constituted an occupation of the tract of land, as a whole, and we do not think the court erred in holding that the defendant’s claim ought not to be restricted to the land actually inclosed with a fence. “A fence, building or other improvement is not essential to constitute adverse possession.” Leeper v. Baker, 68 Mo. 400, and cases cited. The use made, of the outlying woods land in this case was such a necessary adjunct to the enjoyment of the inclosed land, and was necessarily so continuous and incessant, as that it may be said to have been actually occupied in as full a sense as was the inclosed land. The judgment of the circuit court is affirmed.

All concur.