8 Mo. 636 | Mo. | 1844
delivered the opinion of the Court.
Elvin A. Thorp brought his action of forcible entry and detainer, against Larkin Packwood, before a justice of the .peace of Holt county, and obtained a judgment
On the trial of the cause in the Circuit Court, the plaintiff, Thorp,'proved, that some time in the month of December, 1840, he erected a cabin, on the quarter-section of land for which this suit is brought; and retained possession up to the time of bringing this suit: that he was a single man, more than twenty-one years old, and that he had no other improvement. He also proved, that he had bought this land from the defendant. The witness also testified that Thorp, the plaintiff, was his son, and that he executed his note to the defendant, for fifty dollars, with the witness as security; “ That there was underwritten, that the note was given only for defendant’s labor on said quarter; ” for the reason, that the defendant did'not intend the trade to interfere with the defendant’s pre-emption that he might acquire by virtue of his settlement on the quarter on which he lived: that defendant told the plaintiff, at the time of the sale, that he would retain possession of that part of his field which was on said quarter, being some three or four acres, till the land was brought into market, (it being public land) but told the plaintiff to go and take possession of the quarter, but he never delivered the possession thereof to the plaintiff, but he continued to hold the possession of the said three or four acres, and to cultivate them; and that some time in the month of January, 1842, the defendant built a rail-pen, or half-faced camp, on said quarter near defendant’s [plaintiff’s] field, and moved his family into it, where he remained till this suit was brought. It was also in evidence, that the defendant attempted to sell said note, but was prevented by the plaintiff’s declaring that he would not pay it, because it was obtained by fraud; that he had understood that the defendant had said he would not let him have the said quarter, and that the defendant having heard this declaration of the plaintiff tore and destroyed said note, and moved upon the said quarter as aforesaid. It was also in evidence, that the plaintiff tendered the defendant fifty dollars in payment of said note, some few days before it became due, and that the defendant observed he had no claim against him, and refused to receive the money. It was also in evidence, that some time in the year 1839, before the lands were surveyed, the defendant had settled upon an adjoining quarter, where he had ever since lived, and cultivated it, except the time he lived on the quarter first aforesaid; and that, when the lines were run, the said three or four acres of the field aforesaid of the said last-mentioned settlement were found to be on the quarter first aforesaid: (the quarter sold by Paekwood to Thorp, as I suppose.) This was all the evidence given.
The amount of all this evidence is this: that, in September, 1840, Paekwood, the defendant, sold a quarter section of public land, on which he had cleared a field, to the plaintiff, Thorp. This is the land in dispute. Thorp executed his note to Paekwood for fifty dollars, with the witness, Thorp’s father, as security. This note was for the price of the land; and under the note was written, that the note was given only for the defendant’s labor on said quarter, for the reason, that the defendant did not intend the trade to interfere with the pre-emption he might acquire by virtue of his settlement on the quarter on which he lived. This was % quarter section adjoining that he sold to Thorp. Paekwood, then, seems to have
The sale, from the evidence, must have been verbal, for the condition was endorsed on the note given for the price or consideration of the land. Packwood, then, sold nothing but his right of possession of that field, and he did not sell the three or four acres of that field on which he entered and built the camp; and these three or four acres were not included with the plaintiff, Thorp’s, fence.
On this evidence, the Circuit Court instructed the jury, at the instance of the plaintiff, that if they find the plaintiff had the actual and exclusive possession of the land, in the complaint mentioned, and that the defendant entered upon such possession against the will of the plaintiff, and detained the same at the time of the commencement of the suit, they will find for the plaintiff to the extent of his possession: secondly, that a man may have the actual and exclusive possession of land not inclosed.
The court gave these instruetions, and the defendant excepted to the opinion - of the court.
The land sold by Packwood to Thorp was land of the United States, as proved by the plaintiff himself. In the case of Clark vs. Shultz, 4 Mo. Rep., 235, it is said, that this kind of property is considered as no interest in the land, and a verbal sale of it may be made, notwithstanding the Statute of Frauds. The sale, then, of this right of possession in the field by Packwood to Thorp, was good. But Thorp’s own witness (his father) proved, that Packwood refused to sell these three or four acres, on which he built the camp, and reserved them for the express purpose of gaining him a pre-emption, and believing them to be on the quarter section on which he (Packwood) had settled, adjoining to Thorp. But when the land was surveyed, it appearing that these three or four acres were on Thorp’s quarter, Packwood fixes his camp on the land; in order to maintain his right of possession, and aid him in procuring a pre-emption.
Thorp did not, then, derive any right of possession to these three or four acres of land from Packwood by virtue of this purchase, and they were not inclosed in his field. In the case of Kincaid vs. Logue, 7 Mo. Rep., 169, it is said, “ When a man is in possession of a tract of land, the whole of which is his own property, the possession of a part is the possession of the whole. Kincaid, the plaintiff in that case, had inclosed about two hundred acres of land, with the worm of a fence, and a fence built, in some places, on that worm,— in some places, three or four rails high, in others, one rail high: there were several gaps in this fence, and several public roads ran through said fence, inclosed as aforesaid. Logue bad built a cabin on this landj and it was decided that Kincaid did not have such
The decision of the Circuit Court, “ that a man may have the actual and exclusive possession of lands not inclosed,” is too broad. He can have no possession of lands not occupied by him, unless also he have the right of property in such land. The second instruction, then, was wrong, and for that reason the judgment in this case must be reversed, and the cause remanded.