30 Mo. 272 | Mo. | 1860
delivered the opinion of the court.
The statute of limitations having been the main ground of defence at the trial of this case, the instructions on that subject constitute the principal point for our consideration.
There is an admitted distinction recognized in the cases on the subject between the character of a disseisin as against strangers and between tenants in common. This distinction is founded on the presumption that a person, who enters into possession of a tract of land having a title thereto, enters in conformity to that title. No presumption will be entertained that a man means to do an unlawful act; and if the title he has gives him a right to enter on the land, his entry is attributed to that title. If, then, one tenant in common enters upon the land, his entry and possession are not esteemed prima facie adverse to his co-tenants, but in support of the common title; and his possession and seisin is the possession and seisin of the others. (Cruise, Dig. tit. 20, § 14.)
That one tenant in common may disseise or oust the others is also very well established ; but it is not so easy to determine from the authorities- what acts will amount to an ouster. This difficulty does not seem to arise from any contradiction or confusion in the principles of law decided upon this subject, but in the application of admitted principles to the facts of each particular case. An actual ouster, or “ turning out by the heels,” as some of the judges have termed it,
To constitute an adverse possession of one tenant in common against his co-tenants, there must be some notorious act asserting an entire ownership. It is further said in some cases that this act must be brought home to the knowledge of the co-tenant. This, we suppose, depends upon the nature of the act. If it consists altogether’ of a mere verbal assertion of entire ownership, such an assertion could not with any propriety be regarded as an act of adverse possession of which the co-tenant was bound to take notice, unless made to him or communicated to him. A declaration to a mere stranger amounts to nothing, unless that declaration is brought to the knowledge of the co-tenant. But when the act is of such a nature as the law will presume to be noticed by persons of ordinary diligence in attending to their own interests, and of such an unequivocal character as not to be easily misunderstood, it is not believed to be necessary that any positive notice should be given to the co-tenant, or that it devolves upon the possessor to prove a probable actual knowledge on the part of the co-tenant. It is sufficient that the act itself is overt, notorious ; and if the co-tenant is ignorant of his rights or neglects them, he must bear the consequences.
In the case of Clymer’s Lessee v. Dawkins, 3 How. 689, Judge Story expresses a view of the law of notice to co-tenants, which seems to have been adopted by the court below in the trial of this case. “ The entry and possession of one tenant in common,” says Judge Story, “ of and into the land held in common is ordinarily deemed the entry and possession of all the tenants ; and this presumption will prevail in favor of all, until some notorious act of ouster or adverse
In the case of Lodge v. Patterson, the supreme court of Pennsylvania seem to explain the law relative to notice in cases of this character with more accuracy. “ The character of adverse possession is given, not by proving notice to parties interested, but by the' nature of the acts done by the party. There must be a hostile intent, and that intent must be manifested by outward acts of an unequivocal kind. To constitute a disseisin, it was never held to -be requisite that notice should be sent to the disseisor, or that it must be proved that he had knowledge of the entry and ouster committed on his land. The open act of entry, with the declared intent to disseise, constitute the disseisin.”
These opinions may seem to conflict, but when the facts of each case are looked to, it will seem that they are essentially different; and the attention of the court is of course directed to the law as applicable to the state of facts presented. In the case of Lodge v, Patterson, the party sued, who was one
In this case, if the declaration of the defendant to one of the witnesses, that he claimed the whole block, or was the sole owner, is the only act relied on to make the possession and retention of the rents and profits an ouster of the plaintiffs or those under whom they claim, it was proper to tell the jury that such declarations, to be available as acts of adverse possession, must be made to the co-tenant, or must be brought home to his knowledge. If other acts are relied on, their notoriety would be a matter for the jury. As the facts of the case were developed on the trial, it was apparent that they presented mainly the question whether a possession for twenty-sis years, and a receipt of the rents and profits, without any account rendered, and without any demand made, would of themselves raise a legal presumption of ouster, or would authorize a court to leave the question to the jury.
In England, an exclusive possession of thirty-six years was allowed to go to the jury as evidence of an ouster, and the jury found a verdict upon this bare fact, in the absence of any explanatory proof on either side. Lord Mansfield said, when the point came up for review in the King’s Bench: “ It is a possession of near forty years, which is more than quadruple the time given by the statute for tenants in common to bring their action of account, if they think proper, namely, six years ; but in this case no evidence whatever appears of any account demanded, or of any payment of rents and profits, or of any claim by the lessors of the plaintiff, or of any acknowledgment of the title in them or in those under whem they would now set up a right; therefore I am clearly of opinion, as I was at the trial, that an undisturbed and quiet possession for such a length of time is a sufficient ground for the jury to presume an actual ouster, and that
In New York an exclusive possession of twenty-seven years was held insufficient to authorize the presumption of an ouster, although in the intermediate time there had been an actual resistance to the plaintiff’s entry and claim. (Northrop v. Wright, 24 Wend. 221.)
In Pennsylvania it has been held that a jury may presume an ouster from an exclusive actual possession by a tenant in common for the period fixed by their statute of limitations. (Law v. Patterson, 1 W. & S. 186; Bolton v. Hamilton, 2 W. & S. 299; Galbreath v. Galbreath, 5 Watts, 147.) An examination of the facts, however, in the cases where this doctrine is enunciated in Pennsylvania will show that there were in each case circumstances attending the facts of possession, which would fully authorize the inference of adverse possession. The case of Law v. Patterson may be selected as the strongest case reported in support of the doctrine that mere possession and retention of profits, &c., for twenty-one years will justify an inference of disseisin. That was a case where the land was bought and paid for by the defendant in possession, and a title taken in the name of himself and another, who was a partner in mercantile business with him. The defendant had taken exclusive possession; had improved and built upon the land; had leased the whole premises for seven years; and at the expiration of that term had relet the premises for another long term, reserving rent to himself, and actually receiving all the rents and profits of the place for upwards of twenty-one years, without any demand made by the partner in whose name the purchase originally stood; and the partner lived all the while in the immediate neighborhood of the defendant, and had advanced no part of the purchase money. There could be no doubt about notice in the case, for every thing occurred, as.the court observed, directly “ under the eye of the plaintiff.” But the court, in Wilson v. Collinshan, 1 Harr. 277, say, speaking of the case of Law v. Patterson: “ The mere exclusive receipt of the
The facts, which have usually gone to make out a case of adverse possession, have been such as a refusal to the co-tenant to permit his participation in the profits or his entry, a denial of his title, claiming under a defective - deed for the entirety, purchasing the co-tenant’s title at a sheriff’s sale and an exclusive claim under it, or a conveyance of the whole by deed and an entry by the grantee under the deed, (2 Cruise Dig. tit. W. S. 14, note 3,) and, we may add, following the case of Law v. Patterson, putting up improvements without consultation with the co-tenant and under his observation, and taking the entire profits without objection from him.
In North Carolina it appears to be held that twenty years’ sole possession alone will constitute a bar. (Thomas v. Garvan, 4 Dev. 225 ; Cloud v. Webb, 4 Dev. 290.) But this doctrine would seem to lose sight of any distinction between the facts necessary to constitute an adverse possession in tenancies in common and any other case of adverse possession— a doctrine which may find some recommendation in principles of public policy, but which certainly has not yet been generally prevalent.
In Massachusetts the courts maintain the view presented by Judge Story, in Prescott v. Nevers, 4 Mason, 330, and in Clymer v. Dawkins, 3 How. 270. The entry of a tenant in common upon land, and taking the whole rents and profits without paying any share over to the co-tenant, is not regarded as an ouster; but an entry under a claim to the whole is considered adverse; and therefore, in the particular case referred to, a purchase of the entirety from an adverse claimant to the cotenant, although the title was invalid, was held to make the possession hostile and amount to an ouster. (Parker v. Prop., &c., 3 Metc. 99.)
Apart from any deduction to be drawn from the record
But there are other circumstances elicited in the proof offered and rejected on the trial, which, if competent evidence, would undoubtedly have a significant bearing on the question at issue, and a controlling influence in their settlement, if not counterbalanced by proofs from the other side equally significant. The partition suit in 1836, between Ware — from whom the plaintiffs derive title — and the heirs of Bates and Smith, ought not, in our opinion, to have been excluded from the jury. The petition in that case averred that this block of ground was sold by Lisa in his lifetime. This can not be regarded as an.estoppel, because, as a record, the pai’ties are not the same; and, as a fact in pais, there is
On the other hand, it appears that as late as 1853, a suit was instituted by Mrs. Lisa for the same interest now sued for by the plaintiffs ; and in that suit, the defendant in his answer insisted “ that he would show on the trial, and against the claim of Lisa, a title in N. Ware [from whom the present plaintiffs claim] to the premises claimed by the plaintiffs, by virtue of a sale under judgment and execution against the executors of Mr. Lisa.”
In cases of long continued uninterrupted possession, juries have been authorized to presume conveyances in support of the title of the possessor. “ Presumptions of this nature,” it was observed by Judge Story, in Ricord v. Williams, 7 Whea. 109, “ are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to or an admission of an existing title in the party in possession. They may therefore be encountered and rebutted by contrary presumptions, and can never fairly arise where all the circumstances are perfectly consistent with the nonexistence of a grant.”
In addition to the fact that the possession of the defendant in this case was entirely consistent with the title to two-thirds of the block which he is conceded to have, there would seem to be great embarrassment in allowing a presumption of a fact which is virtually disavowed in the defendant’s answer in a suit involving the matter now in controversy. But as the plaintiffs, or those from whom they claim title, made quite as formal a disclaimer of title on their part in the partition suit in 1836, the evidence on each side should have gone to the jury for what it was worth. If the deduction should be that both statements are true, and that neither party has a title to the interest now sued for, the result, of
As the record of the suit in partition in 1836 was excluded from the consideration of the jury, the judgment will be
reversed and the cause remanded for trial.