49 Mo. 458 | Mo. | 1872
delivered the opinion of tne court.
Both parties claim through one Herrick: the plaintiff, by virtue of an execution sale and purchase by one Eiske, his father’s grahtor, and also by adverse enjoyment for over ten years ; and the defendant by a deed executed previous to the judgment and sale. Both sales were in 1837. The land is unimproved, at least until recently, by defendant, and there have been several conveyances in the chain through which each party traces his title, which need not be considered. The plaintiff does not seem to deny that defendant’s title would be the best, had the original deed from Herrick been properly acknowledged, and had there been no such adverse possession as would alienate it.
First, as to the effect of the deed and the propriety of admitting it in evidence. It was admitted that it was not acknowledged according to law, although it was duly recorded, but the defendant claims that the purchaser at the execution sale, and his grantees down to the plaintiff’s ancestor, knew of its existence; and if this were so, it does not matter whether it was acknowledged at all.
Upon this question of notice the court, by several declarations of law, held: first, that the record of the deed under consideration was, previous to the act of 1847, no constructive notice to the purchaser upon execution, or those claiming under him; second, that a knowledge of the record was no notice of the contents of the deed; and, third, that public notoriety of the deed and the defendant’s ownership was not to be received or considered as evidence in charging the plaintiff, or those under whom he claims, with the actual knowledge spoken of in the statute. Upon the first point the court was correct. The acknowledgment was taken before a justice of the peace of a county in which the lands do not lie, and was unauthorized by the statute. (Bishop v. Schneider, 46 Mo. 472.) Not being acknowledged, its record was outside the statute, and of itself imparted no notice except
Upon due proof of the loss of the original deed from.Herrick, a certified transcript of the record of the same was produced, and after several witnesses had testified that it was a correct copy, it was offered in evidence. It seems to have been at first received, but afterward the court declared that it was not properly in evidence. Previous to the act of 1847, the record of a deed, imperfectly acknowledged did not operate as constructive notice. The provision of said act upon the subject is embodied in section 35 of the present statute, and by the next section (Wagn. Stat. 595, § 36) it is provided that certified or other copies of such record shall not be received in evidence without proof of the execution of the original. This provision seems to have been
The effect, then, of producing in court the certified copy, is the same as the production of any other copy. The execution of the original and the truth of the copy must be satisfactorily established, and by the best evidence the nature of the case admits of. These are questions of fact, after the court, upon being satisfied of the loss of the Original, has admitted secondary evidence; and such copy, when properly identified, is the most satisfactory evidence of the contents of the original. As this case was tried by the court sitting as a jury, it is difficult to understand whether the court intended to say, as a question of fact, that the execution of the original or the truth of the copy was not shown, or whether the copy was ruled out upon other grounds. • There was evidence tending to prove both facts; its sufficiency was submitted to the court, and no such ambiguous declarations of law should have been made in regard to it.
The plaintiff’s chief reliance, however, seems to have been upon a title acquired under the statute of limitations. There was evidence tending to show that his father died in California in 1849; that in 1855 the plaintiff moved upon a prairie farm two or three miles from the land in controversy, and commenced cutting rails and wood upon the land to use upon his prairie farm; that he put up a log cabin upon it, in which his tools wtvo
The fact that the plaintiff went into possession under color and claim of title as heir of his father, makes his possession that of a tenant in common, and he can only prosecute for the interest of which he has been deprived. (1 Pick. 224; 3 Green, Iowa, 30.) It does not appear that his co-tenants are disseized, and, whether so or not, he has no interest in prosecuting for them. The declarations of the plaintiff when sworn as a witness, that he claimed the whole for himself, and intended to give what he thought was right to his brothers, cannot make the possession which he took under his father adverse to the other heirs, but, if he wishes his possession to be considered as having established a title, must be held as the possession of all, for there was no claim' or color in him except as one of such heirs.
The subject of adverse possession when there is no actual corporeal occupation of the land is not without difficulty, and courts have not found it easy to give a general statement of what in all cases may constitute such possession. With the short limitation we have in Missouri, it would endanger property rights to permit a loose claim to land, with such acts of ownership only as might be exercised without attracting the attention of the. real owner, and without actual occupation, to ripen into title. In order to bar the true owner, the adverse possession relied upon is presumed to have been known and acquiesced in by him. It would be a fraud to deprive him of his property through a claim of which he not only knew nothing in fact, but which was not accompanied by acts that would, if he looked after his property, advise him of its existence. In visiting his land the indications of the claim and possession should be so patent that he could not be deceived, so that if he remains in ignorance it is his own fault. Can this implied notice and acquiescence be predicated upon the facts
The remarks of Scott, J., in Draper v. Shoot, based upon Ewing v. Burnett, 11 Pet. 53, suppose two important facts, wanting in the present case, as necessary to create a disseizin when there is no actual occupation. First, he supposes the claim is made and the acts of ownership exercised with the knowledge of the adverse claimant, and without interruption or adverse entry by him. This is a very important fact. Where there is actual occupation itnd improvement, knowledge may be presumed, but such knowledge cannot be predicated upon acts of ownership merely; for, especially as to non-residents, they maybe exercised and may be notorious in the neighborhood and nothing be done of which the true owner is bound to take notice. It is difficult to. conceive that one may be ousted without knowing it, even though his possession be constructive, and it can hardly be predicated upon the constructive possession of another or upon anything short of actual occupation, at least of a part, with claim and color to the whole. The remarks also suppose that the property is so situated as not to'admit of any permanent useful improvement. In the case at bar, there is no evidence that the land in controversy would not admit of improvement, but only that it was a wood lot; that the owners of prairie farms in the neighborhood were in the habit of using these wood lots to improve such farms, and that it could not be cultivated without being cleared.
The judgment will be reversed and the cause remanded.