60 Mo. 105 | Mo. | 1875
delivered the opinion of the court.
This was an action of ejectment to recover the west half of the north-west quarter of section 15, township 56, range 29.
The plaintiff produced in evidence a patent from the United States for the land in controversy, to one Squire Bozarth, ■ the date of which is not stated, and a proceeding in" equity in 1S70. to divest the title from Squire Bozarth to his brother, John Bozarth; and then produced a deed from John Bozarth to himself.
The patent is not copied in the record by agreement of counsel, but from subsequent testimohy we may infer that it was dated as far back as 1838 or 1839, and perhaps.earlier.
The only defense relied on was the statute of limitations, and the testimony on this point is exceedingly vague and con- ■ .fused ; and it is difficult to state the precise state of .facts on which the instructions and subsequent verdict and. judgment of the court were based.
■ David Hughes, the father of the defendant, was in possession of a farm, lying partly in the north half of section fifteen, in 1839 or 1840. His house, which some of the witnesses call the “old Jo. Smith house,” was in ornear the town of Far-West, and his farm, actually'enclosed and cultivated, contained about 100 acres of land, lying mostly in the northeast quarter of section 15, and partly in a section north of 15. The origin of the claim or title to this farm nowhere appears in any portion of the evidence given at the trial on either side.
It does appear, however, beyond dispute, that in 1855,-Da-vid Hughes convey'ed the north half of section 15 (which embraces the land in controversy) together with some 60 acres in section 10, to John P. Grubb, of St. Joseph, to secure a loan of about $1,300 made by one Roberts of the same city. There having been a failure of payment on the part of Hughes, Grubb, the trustee, sold the land under the/leed, on the 28th June, 1856 ; and James M. Hughes, of St. Louis, became the purchaser, through an agent of his, sent to Kingston for the purpose. The sum bid was about $1,500. After this J. JML Hughes made a deed for this same land to David Hughes, said Hughes agreeing to give his note or notes for the amount of the purchase, with interest, and to secure the same by a deed of trust.
The’ witness who testifies to these facts then proceeds “said deed of trust and notes were sent to me with the deed to David Hughes by' James M. Hughes. The deed of trust •and note or notes above refeiTed to were burned at the time of the burning of the court house in Kingston, in April, 1860. They were in my possession when burned. After this, and after the death of David Hnghesand James M. Hughes, the land was sold under a deed of trust, executed and made by said David Hughes at Kingston, and bought in, as I now remember, by Calvin F. Burns, &c.” This is all the testimony in reference to the deed of J. M. Hughes to David Hughes.
In regard to acts of ownership or verbal declarations of own ership of the land in controversy, the testimony of Th. C. Hughes, a son of David Hughes, was, that his father moved to the county in 1839; that he cultivated a field of 100 acres in the north half of section Í5, but not including the 80 acres now in dispute, nor any part of it; that he claimed the north half of the section by a deed from J. M. Hughes; that from 1811 to 1811, he had a race track on the north-west quarter, which passed over an acre or two of the 80 acre tract sued for; and upon one occasion he authorized a neighbor to cut firewood on this western 80, of the north half of the section.
It was proved that David Hughes never gave in this land to the assessor, and that it was taxed as belonging to one Sam. Stewart. It also appeared that Bozarth had paid the taxes.on the 80 acre tract in question, in 1811 and 1815, but neglected to pay any thereafter, thinking it had been sold for non-payment of taxes.
Omitting for the present any notice of the minor questions presented by various exceptions taken at the trial, it is obvious that the merits of this case depend upon the construction which is to be given to the phrase “color of title,” so frequently found in adjudications and text books, in connexion with the facts in evidence.
That the original entry of Hughes was without color of title, we are left.to presume, as none was shown-; that an entry upon 80 acres of land and an actual possession of the same will not give “color of title” to 160 acres, without some paper conveyance to the disseizor, or some claim based on thepecu
C. J. Gibson, in McCall vs. Neely (3 Watts, 72), discusses this subject carefully, and his conclusion is expressed tints: liTo give color of title, would seem not to require the aid of a written conveyance, or a recovery by process and judgment, for the latter would require it to be the better title. I would say that an entry is by color of title when it is made under a bona fide and not pretended claim to a title, existing in another. It is impossible, therefore, to say that a disseizor, claiming to be the true owner of a survey, as he may in fact be, without being named-in the warrant, does not enter by color of title.”
These observations of this eminent judge are plain enough to convey his meaning, as applied to the system of land surveys and warrants in Pennsylvania ; but under the system of surveys adopted by the federal government for the sale of their huid in the Missouri Valley Territory and Louisiana, some modification of the principle, or of its application, seems necessary.
In Pennsylvania, as in Virginia, lands were granted upon surveys of no specified extent, and conforming to no fixed system. Each warrant contained a specified number of acres and specified boundaries, perhaps to be determined by water courses, mountains or other natural objects, or contiguous surveys. The surveys might contain 500 or 1000 or 5000 acres, or any intermediate, quantity, depending upon prior settlements, or grants or upon the present bounty of the government issuing the warrant. Each warrant and survey was, however, distinct and isolated, and had no connexion with any general system.
But in this country all the public lands are surveyed into townships, sections and sub-divisions of sections, each survey containing riot only a definite number of acres, but precisely the same number (barring slight inaccuracies) contained in a survey of a corresponding township, or section or sub-division of a section. It cannot be said, therefore, that one who en
Nor can he get a color of title to the section by simply making a deed to auother person for the entire section, and then taking a deed back to himself. Such a transaction, without any consideration, would be regarded as a mere fraud.
But can the deed to a third person, in the case supposed; when made in good faith, and upon ample consideration, have the effect to give the grantor color of title? We think not. It is no better, so far as the grantor is concerned, than a verbal declaration from him would be, that he owned the section of land he conveys; andynere verbal declarations cannot elevate him above a trespasser to an owner. (Morey vs. Staley, 54 Mo., 419 — and cases there cited.) It is undoubtedly an act’ indicating a claim of title; but it cannot elevate the claim to one “under color of title and the latter, it is needless to say, is necessary, in order to protect the claim beyond the limits of actual possession under the statute of limitations.
The fifth section of our act concerning limitations, declares that “the possession, under ‘color of title,’ of a part of a tract, in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract so claimed, shall be deemed a possession of the whole of said tract.”
This provision seems to be a mere codification of well settled principles ; but the question as to what constitutes color of title, is left where it was before.
An examination of the opinion of this court, in City of St. Louis vs. Gorman, (29 Mo., 602) will show that it was not for a moment supposed that a disseizor could claim his possession as under color of title, beyond its actual limits, merely by making a deed to a third person. As Judge Scott observed in that case, “the evidence relied on would just as well show that
Applying these principles to the facts of the present case, a3 far as the record discloses them, it is apparent that the claim of David Hughes to the north half of section 15, undercolor of title, originated with the deed from James M. Hughes.
And here is presented an obscurity in regard to this deed which prevents any final disposition of this case; and which might have been removed by the witness and the only witness who testified concerning this deed. It is true that another witness, the son of David Hughes, speaks of his father claiming the half section, under a deed from J. M. Hughes, as early as 1813 or 1811; but the statement is so indefinite, as to date, as to leave the inference that he was merely referring to the deed made by said J. M. Hughes, after his purchase under the sale of Grubb.
The testimony" of O. E. Hughes, in relation to this deed, is exceedingly vague. It does not appear that this deed was ever delivered. It does not appear whether it was sent to him as an escrow, to be delivered to David Hughes, upon his executing the notes and deed of trust spoken of, or whether it was sent to him as the agent of David Hughes, or whether it was recorded.
It appears that the notes and deed of trust were burned in the witness’ office in the court house in 1860, when the court house and all its contents were destroyed by fire. It is not stated whether this deed was burned at the same time. It might be inferred, from the subsequent deed made by David Hughes to Hardwick, in 1866, that the deed had been delivered to David, Hughes, either in person or to his agent; though
Hnless the instructions have been mis-recited in the record, they appear to be obviously contradictory.
The first instruction given for the plaintiff was correct, and is as follows : “Proof of David Hughes claiming the land in controversy, is no evidence of his possession, Unless he claimed said land by color of title, as a part of the tract of land upon which he resided.” The second instruction which was refused was, “Color of title cannot be established by a chain of conveyances commencing with a conveyance made by David Hughes; but must commence by.a conveyance made to David Hughes.” The first clause of this instruction is rather broad and indefinite and liable to misconception, but the last clause is correct and explains the meaning of the first clause, and it might well have been given.
The 3rd instruction asked by plaintiff was given, and is thus : “The fact that said David Hughes made conveyances of said land is no evidence that he had the title or color of title to the same; and his purchase of said land from James M. Hughes, as purchased under the deed of trust made by David Hughes, vested the said David Hughes with no other or greater title than he had at the time he executed the deed of trust.”
It is difficult to understand what is meant by this instruction, unless we refer to the next instruction, which is in these -words : “ The conveyances offered in evidence, by defendant, show a color of title in him only since the date of his deed from Calvin F. Burns, and a color of title in said Burns, only from the date of his purchase of said land from Sam. Hard-wick, trustee.”
Various instructions asked by plaintiff were refused ; but it is unnecessary to copy them. I will merely quote some of the more prominent ones given for the defendant.
Two additional instructions were given for defendant, but they assert the same rules of law stated in those copied.
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The first instruction seems to assert that a party who has a title to land, but who omits to take actual possession of it for 20 years, is barred b}-- the statute of limitations, although no actual adverse possession by any one else has occurred.
The title carries with it the seizin ; and there must be an actual ouster to divest it, at any length of time, or a constructive disseisin by an adverse possession of part of the tract under color of title.
As the case must be remanded on account of these erroneous instructions, it is proper to advert briefly to one or two minor points made on the trial.
It is contended, in this case, that the establishment of a race track over a corner of the land in dispute, in 1842, and allowing a neighbor to cut a few loads of wood on the tract, were such acts of ownership as would constitute an adverse possession. But it is not pretended that Hughes’ claim, if he had any, was at the date of these acts, under any color of title whatever. This was long anterior to any deed made even by himself; and the acts could be regarded in no other light than mere trespasses, and not such acts as would apprise the true owner of anjr hostile claim.
We see no objection to the admission of the copies of the deeds from Hughes to Hardwick and from Hardwick to Burns; nor to the intx-odxxction of the printed hand-bill ox-advertisement of the property by Grxxbb. Under the circumstances, the handbill was an important link in the evidence, and especially calculated to throw light xxpon the date of the sale — and the exact description of the land — matters which in the destruction of all the original documents and deeds axrd
The decree by which the title to the land in controversy -was conveyed to plaintiff's grantor, could not be attacked collaterally for such irregularities as have been pointed out. It was good against all the world, except such as had an interest and a right to have it set aside; and the defendant had no interest in it whatever. "Whether the title remained in the original patentees, or in the parties to whom this decree transferred it, could not concern the defendant, Avho claims only by a possession adverse to the patentee.
The judgment is reversed and the case remanded;