41 Mo. 431 | Mo. | 1867
delivered the opinion of the court.
The case is to be regarded upon this record as an action of ejectment. The plaintiffs claim an undivided interest of seven-ninths in the land in controversy, as tenants in common with the defendants, who are holding the possession of the whole premises adversely to the plaintiffs and deny the co-tenancy. The petition seems to have been drawn upon the erroneous conception that an ejectment and a partition
The land in controversy (being U. S. survey No. 2060, in the county of St. Genevieve) was conveyed by patent from the United States to Pascal Detchemendy in 1834. He died in 1844. The plaintiffs claim by descent as heirs. It is clear that the title descended to them unless it had been conveyed away by their ancestor before his decease. The defendants endeavored to show that the title of P. Detchemendy had been conveyed to them by valid conveyances, or that, if the deeds were ineffectual to pass the title, they had held an adverse possession under them for a sufficient length of time to bar the plaintiffs’ action under the statute of limitations. The evidence wholly failed to establish such an adverse possession. The possession of this land by defendants and those under whom they claimed as against the plaintiffs and the common ancestor, so far as it was ever adverse, began within the period of the statute bar then in force. The defendants undertook to prove a legal seizin in themselves, or those under whom they claimed adversely, by virtue of title anterior to any actual adverse possession of this land by them: they also attempted to show an outstanding title in other persons. For the latter purpose, they gave in evidence two mortgages from Pascal Detchemendy, one to the State of Missouri, and the other to Pierre Chouteau and others. The
To show a seizin by title, and to support a claim of adverse possession, the defendants relied, first, upon a tax deed from the Auditor of the State, dated July 18, 1834, with nothing more to establish a tax title under the laws then in force. The cases of Morton v. Reeds, 6 Mo. 64, and Reeds v. Morton 9 Mo. 868, which arose under the same statutes, are clearly to the effect that this deed alone was wholly insufficient to
Where a parchment exemplification of a commission, issued by the Crown in the reign of Queen Elizabeth, to inquire into the boundaries of a town, was produced from the corporation chest, in 1838, showing a slip of parchment at the foot corresponding in size and form with that on which the great seal was usually affixed, though there was nothing else to show that the seal had ever been affixed, the court presumed that the seal had been accidentally removed—Beverly v. Craven, 2 Mood. & Rob. 140. This deed can hardly be considered an ancient document of that sort, and the circumstances are very dissimilar. It was made in the execution of a statute power which must be strictly pursued, and upon a sale of property in invitum as to the owner. It is not really a case where the actual possession of land has been held for a long time under the deed only. The title was claimed here under other deeds also; and the actual possession, if there were any adverse, did not reach back for twenty years. We find no authority that would authorize such a presumption to be made in a case like this, and must hold the ruling of
It was contended by the defendants that these deeds, though ineffectual to pass the title, were sufficient to support a claim of possession, and extend the actual possession of a part claiming the whole to the entire tract so as to amount to a disseizin of the true owner not in the actual possession of any part. The evidence was not sufficient to sustain this pretension. There was no actual possession on the particular land in controversy, under any deeds whatever until within the twenty years. The first possession by Clement C. Detehemendy appears to have been confined to the larer tract on which the dwelling-house was situated and to the other small tract on which there was a mill; and it would seem that he claimed merely as a tenant in common with his father. When his possession became so far adverse as to amount to a disseizin and actual ouster of the co-tenant is quite uncertain, if it ever became such. This subject was discussed in Warfield v. Lindell, 38 Mo. 561. But it is very clear that he never took any actual adverse possession of this survey No. 2060 until between 1837 and 1839. Nor can the earlier possession on the other tract be extended to this tract. Moreover, he appears to have bought in the tax title and the title or claim under the sheriff's deed, while he was a tenant in common, and there is nothing in the evidence to make it very decisive or satisfactory that he should not be deemed to have purchased those claims for the benefit of the other tenant in common as well as for his own. At any rate, we are satisfied that the defence under the statute of limitations was not made out. There was no error in refusing the instructions on this point.
The judgment will therefore be affirmed.