Morgan v. Pott
101 S.W. 717
Mo. Ct. App.
1907
Check Treatment
BLAND, P. J.

(after stating the facts). — We do not think the court erred in excluding the Kyser-Barcroft mortgage. There is nothing to show that it was ever foreclosed, and more than twenty years having-elapsed since its execution, the presumption is that it was paid and satisfied. [R. S. 1899, sec. 4277.]

2. None of the plaintiffs were parties to the Suit to recover delinquent taxes; for this reason, if for no other, the tax deed read in evidence was ineffectual to pass their title to the purchaser at the tax sale. But defendant contends that his predecessors took possession of the land claiming- title under the tax deed, and for this reason were not trespassers, and that he also, as their successor by grant of their possession and title, was not a trespasser. The tax deed furnished color of title, and the uncontroverted evidence is, that the M'cMullin Lumber. Company and the Ohicago-Mississippi Land and Lumber. Company were in the actual possession of a part of the four thousand seven hundred and twenty acre tract, claiming title to the timber on the whole of the land, and exercised actual ownership over the whole, hy cutting and removing therefrom the saw timber growing thereon. Trees standing on land are a part of the land, the title to which can be passed by a statutory deed. [State ex rel. v. Rubber Mfg. Co., 149 Mo. *378193, and cases cited; Manning v. Coal Co., 181 Mo. 359; Lead Co. v. White, 106 Mo. App. 1. c. 230, and cases cited.] The instruments whereby the timber was sold and conveyed to the McMullin Lumber Company and to the Pascóla Stave Company contained apt words of conveyance, effectual to transfer an estate in the growing timber, and were acknowledged in the manner prescribed by section 907, Revised Statutes 1899, were good as statutory deeds and effectual to convey to the grantees therein named all the interest the grantor had in and to the timber growing on the land described in the instruments.

In Brown v. Hartford, 173 Mo. 183, 73 S. W. 140, it was held that, a void tax deed, under which the grantee entered into possession malees the possession of a part of the contiguous body of land therein described, possession of the whole; and in Holladay-Klotz Land and Lumber Co. v. Markham and Duckett, 96 Mo. App. 51, 75 S. W. 1121, we held that cutting and removing timber under color of title constitutes acts of adverse possession.

There is nothing in the record, except the verbal testimony of McMullin, to show under what conditions and terms the Chicago-Mississippi Land and Lumber Company acquired the timber from the McMullin Lumber company. He testified that the Chicago-Mississippi Land and Lumber Company was the successor of the McMullin Company so far as the latter company had lands, timber and business in this State, and that the property of the McMullin Company in this State was all merged in the Chicago-M'ississippi Company; and the evidence shows that after the merger the Chicago-Mississippi Company took possession of the lands, mills, etc., of the McMullin Company. But the instrument, if one was executed, by which the McMullin Company transferred its lands, etc., to the Chicago-Mississippi Company was not offered in evidence and is not in the record. *379In the conveyance from the Chicago-Mississippi Company to the Pascóla Stave Company it is recited, that the contract of assignment from the McMullin Company of its interest in the timber to the Chicago-Mississippi Company was exhibited. But this recital was not even evidence of the existence of any written contract or conveyance from the M'cMullin Company to the Chicago-Mississippi Company and is of no value in tracing the chain of the possession under color of right.

Washburn says,' “It is not necessary that land he)d adversely under color of title be held for the statutory period by one person. Provided the cpossessio pedis’ be held continuously by successive persons in privity, the color may pass from one to another by a paper chain title. But if a hiatus occurs in the paper chain, it is fatal as to so much of the land as is claimed by mere color.” [3 Washburn on Real Property (6 Ed.), sec. 1987. See also League v. Atchison, 73 U. S. 112, and Osterman v. Baldwin, Ib. 168.] The hiatus in the Pascóla Company’s chain of title defeated its adverse possession under the color of title, and unless there is evidence tending to show actual possession in said company, the judgment should be affirmed. The only use the Pascóla Company made of the land was to cut and remove timber therefrom. In Carter v. Hornbeck, 139 Mo. 1. c. 245, it is said: “The vice of this instruction is in telling the jury that the use of the land in question by cutting and hauling firewood, saw timber, making and hauling fence rails from the land and clearing up same, constituted actual possession. Such acts do not constitute possession but merely tend to show claim of ownership. Thus in Pharis v. Jones, 122 Mo. 125, 26 S. W. 1032, it was said: ‘Payment of taxes on land, cutting timber therefrom and protecting it from trespassers do not constitute possession but are merely acts tending to show claim of ownership.’ So that defendant’s actual possession in the absence of color of title *380only extended to that part which he has inclosed. [De Graw v. Taylor, 37 Mo. 311; Cook v. Farrah, 105 Mo. 492, 16 S. W. 692; Ward v. Ihler, 132 Mo. 375, 34 S. W. 251; Pharis v. Jones, 122 Mo. 125; Nye v. Alfter, 127 Mo. 529.]” The Pascóla Company was not in possession under color of title, was not in privity with the Mc-Mullin Company, was not in actual possession of the land; therefore, defendant failed to make out any legal defense to plaintiff’s cause of action, and the judgment is affirmed.

All concur.