38 Mo. 561 | Mo. | 1866
delivered the opinion of the court.
The questions presented for decision arise mainly upon the instructions which were given or refused. 1 But, as it often happens in cases like this, the determination of these depends as much, or more, upon the application of the law to the facts of the case than upon settling the principles of law, as such. It becomes necessary, therefore, in the first instance, to examine into the nature of the evidence, that we may gain a clear and definite conception of what the case made really was upon which the instructions were predicated.
The defence was made to rest, in part, upon the assumed ground of an actual entry, by the defendant, into possession of the lots in controversy, by virtue of some exclusive claim of right or title anterior in date to the deed or deeds which made him a tenant in common with those under whom the plaintiffs claim. We find no evidence in the record which can be said to have any tendency to support this position. On the contrary, the evidence clearly shows that the first possession taken by the defendant of these lots was of a date
Another position of the defendant was that upon an exclusive possession of the whole property extending beyond the full period of the statute of limitations, a deed should be pre sumed. That may doubtless be done in a proper case, but there is no ground here for a presumption of that kind. The
The remaining defence rested upon the question of an actual ouster of the co-tenants, followed by an adverse possession for the whole period of the statute of limitations. The state of the evidence upon this matter was such as to present two distinct bases on which instructions might properly have been given to the jury. The first consisted in open, visible and notorious acts of exclusive ownership and actual ouster, which were in themselves of such a nature as to rebut and overcome the legal presumption of a tenancy in common, and to give notice or impart information of such actual ouster, and constitute in law competent evidence from which a jury might be warranted in finding the fact of an actual ouster more than twenty years before suit. The second basis consisted in the mere fact of an exclusive and undisturbed possession of the whole premises, taking the entire profits and paying all the taxes for a period extending beyond the statute of limitations, with the acquiescence of the co-ten-auts, and without any claim of possession, right or title on their part, or any demand for an account of the profits, together with all other circumstances bearing upon the conduct of the parties, and upon the character and intent of the possession, as furnishing altogether competent evidence and a basis of facts proved, in which the court would be justified
Under this first head, the acts proved, which were of such a nature as to afford direct evidence of an actual ouster, and were therefore competent to be submitted to the jury on that question, consisted chiefly, if not entirely, in the occupation and use of the premises for the purpose of quarrying rock. The use made of the old mill building, or the leasing of a small part of the premises, was not inconsistent with the presumed possession of one tenant in common on behalf of all. But an extensive quarrying of rock during nearly the whole period of this entire possession, digging deep holes in the ground, and removing large masses of the soil and rock, was an invasion of the realty itself, and amounted to waste, for which the co-tenants might have maintained an action of trespass against him, and therefore to acts of actual ouster. It amounted to ouster, because it was a destruction or taking away of the thing itself—Wilkinson v. Haygarth, 11 Jur. 104; 2 Crui. Dig. by Greenl. 391, § 10, n. 1. There was ample evidence that large quantities of rock had been quarried and carried away from the premises, amounting to thousands of dollars in value; that small houses, or shanties,-had been erected for the use of the workmen, and that these acts were overt and notorious, and they were unquestionably of such a character as to impart information and give notice to the co-tenants that their rights in the premises were invaded and denied, and that a possession was claimed and a use made of the property which was utterly inconsistent with the presumption that the defendant’s possession was their possession also, and consequently that the unity of possession was dissolved. Upon such evidence as this we think a jury might be well warranted in finding that there had been an actual ouster; but it is a matter of fact for the jury to determine.
The difference in the rule of evidence as applicable to a case of this kind and to a case of adverse possession, a dis-seizin in general, depends upon the presumption of law that
The other evidence had no tendency to prove direct acts of actual ouster. It consisted merely of facts and circumstances going to show negligence, inattention, remissness and failure to claim any right or title, or make any demand for an account of the profits — mere acquiescence on the one side, and a continuous and exclusive possession of the whole premises on the other — taking all the profits and paying the taxes for more than twenty-six years, and for a time beyond the full period of the statute of limitations, both as a bar to an ejectment and a bar to an action of account. Upon evidence
Much stress has been laid upon the effect of the partition record against the plaintiffs. The exclusion of this record would seem to have been at least one of the reasons why the judgment was reversed on the former occasion. It was not then said, nor do we now think that this partition, or the deeds made in confirmation of it, were evidence of any direct repudiation of all right or title in these lots ; but it was said that this record was admissible in evidence as going tG show remissness or negligence in not asserting any claim of right or title, and as showing facts which might form “ a good ground for presuming a deed after the lapse of twenty-six years, and a continuous possession in the defendant during this period.” We have already seen that the evidence produced here laid no foundation for the presumption of a deed; but we think it may be correctly said that the evidence was admissible for what it was worth, as going to show remiss
On the other hand, the answer of the defendant in the ejectment suit of Lisa v. Lindell had no tendency to prove an admission that he held ás a tenant in common with the plaintiffs. The whole answer was to be taken together, and it distinctly placed the defence on the ground of an independent and exclusive claim of possession and ownership adverse to the title of the plaintiff therein. It merely said in one part, that as against her suit he woirld show that the right and title which she'claimed had been conveyed by her to another person. If that would be a bar to her recovery, it would be enough for his purpose; if not, he still stood upon his claim of title and adverse possession, whatever it might be. It had no proper tendency to prove that he was not claiming an exclusive adverse possession in the premises, even as against co-tenants ; nor did it amount to any positive admission of a co-tenancy. It certainly had no effect to prove or disprove any direct act of actual ouster; but the answer, like the petition of the partition, was evidence of what it contained, and the record of the proceedings may be
Such being the nature of the evidence before the jury, the instructions are to be considered as predicated upon this state of the case. The principal objection to the instructions which were given for the plaintiffs points to the matter of knowledge or notice of acts of ouster. The evidence did not show that actual knowledge of any acts of ouster had been' brought home to. the plaintiffs or those under whom they claimed ; but there was evidence tending to prove such overt and notorious acts of exclusive possession and ownership of the whole property as must, by their very nature and character, be deemed and taken in contemplation of law as amounting to an actual ouster, and as giving notice even to tenants in common, whether present or absent, of an intention to hold and assert an exclusive adverse possession against them, and, therefore, of an actual ouster. It belonged to the jury to weigh the force and determine the effect of this evidence, and to decide the question of an actual ouster in fact, involving the act, the intent, and the notice.
These instructions for the plaintiffs appear to be the same as those which were the subject of consideration when the case was here before—Warfield v. Lindell, 30 Mo. 272. The particular objection rests upon the words (in one clause) “ until some notorious act of ouster or adverse possession is brought home to the knowledge or notice of the plaintiffs.” And (in another clause) — “and that the acts and the intents were brought home to the knowledge of the plaintiffs.” The direct and plain purport of this language is to require actual knowledge, or actual notice, to be brought home to the persons. All idea of constructive notice would seem to be clearly excluded. It was expressly declared, in the form
It is true, the words “ brought home to the knowledge or notice of the others” are used by Mr. Justice Story in Clymer v. Dawkins, 3 How. U. S. 689; but it is sufficiently clear from the rest of the opinion that he contemplated not only actual knowledge or notice, but constructive notice also, consisting in overt and notorious acts of ouster, or an assertion of claim to the exclusive possession and the entirety of the whole land “ which, in contemplation of law, is known to the other tenants.” The same purport is implied in the words of Marshall, O. J., in McClung v. Ross, 5 Wheat. 124, that “a silent possession, accompanied with no act which can amount to an ouster, or give notice to his co-tenant that his possession is adverse, ought not, we think, to be construed into an adverse possession.” It is here supposed that acts of ouster may be such as to amount to notice, and in contemplation of law to give notice whether actual knowledge of them be brought home to the co-tenants or not. Such acts are “ constructive notice of a claim adverse ” to the other tenants in common, and such notorious adverse possession is considered to be “ constructive ouster.”—Parker v. Locks & Canals, &c., 3 Met. 191. It is said in Lodge v. Patterson, 3 Watts, 77, that “there must be a hostile intent, and that intent must be manifested by outward acts of an unequivocal
Nor do wc find that any other instruction was given which could have the effect to cure this error, or guard the jury against a misconception of the law on this vital point. The instruction which was given for the defendants also required actual knowledge to be brought home to the co-tenants.
We do not well see how the sixth instruction refused for the defendants, on this subject of knowledge or notice, could have been refused, even on the theory adopted by the court in the plaintiffs’ instructions, unless it were deemed unnecessary, after the jury had already been instructed on that point, that it required actual knowledge; and we think that constructive notice, consisting in a notorious adverse possession, accompanied with unequivocal acts of exclusive ownership, would have been sufficient.
It is not considered worth while to examine in detail the numerous instructions which were refused for the defendants. They do not appear to have been framed with any distinct reference to the different modes of proving an actual ouster, which we have indicated above; and many of them lay undue stress upon particular facts and parts of the evidence. Hardly one of them can be said to be entirely free from objection. We shall not undertake further to point out the specific defects. By the light of the principles above laid
Judgment reversed, and the cause remanded.