114 Mo. 479 | Mo. | 1893
This suit is ejectment to recover a part of lot 1, in block 3, of McCord’s addition to, Neosho. The tract in dispute is described as follows: “Commence at a point twenty-four feet east of the northwest corner of said lot 1, thence east nine feet, thence south two hundred feet, thence west nine feet, thence north two hundred feet to the beginning.” Lot 1 is in the southeast corner of the block and fronts south. Defendants admitted the possession, two of them as tenants of their co-defendant, Baurdick, who claims title. The lot (1), as platted, has a frontage of forty-eight feet and a depth of two hundred feet. On the trial it seemed to have been taken as agreed that one Coller was the original owner of the whole lot, and in 1877 he conveyed to John T. McElhaney the west half thereof. Plaintiff claimed under a warranty deed dated March 17, 1884, from McElhaney, conveying to him the west half of the lot and a quitclaim to the strip in dispute.
In 1870 defendant Baurdick, claiming title from Coller, built a house on the east half of lot 1, which extended to the east over on to the street as platted in McCord’s addition, about ten feet. In 1877 MeElhaney took possession of and built a frame house upon the west half of lot 1. His possession included twenty-four feet, the full half of the lot as platted. This house extended back about seventy-five feet from the front of
Both plaintiff and McElhaney testified that they understood that defendant had a deed from Coller for the east half of the lot and that he claimed to own the disputed strip under that deed. No deed was introduced.
The suit was commenced in October, 1890, and the ouster was .laid March 7, 1884. Defendants offered no evidence, and the court who sat as a jury at request of defendant, declared the law as follows: “Upon the evidence adduced by the plaintiff he cannot recover in this case.” The judgment was. for the defendant and plaintiff appéaled.
As the case comes to us under the evidence neither party has shown a paper title to the lot in question. It appears that defendant inclosed by fence the north half of the lot more than ten years before the suit was commenced, and, from that date, had continued in the actual and uninterupted possession. Indeed plaintiff virtually concedes that the judgment was right as to
The title and right to the possession of the south one hundred feet is only such as may be presumed from actual possession and the circumstances under which it was held. No other evidence of title on either side having been shown, the question of possession, its character and the claim made under it, becomes all important.
There is no doubt that a suit in ejectment may be maintained upon a right acquired by simple possession though short of the period required to confer a title under the statutes of limitation, and notwithstanding the rule that the plaintiff must recover on the strength of his own title. It was said by Curtis, J., in Christy v. Scott, 14 How. 282, “a mere intruder cannot enter on a person actually seized and eject him, and then question his title, or set up an outstanding title in another. The maxim that the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant’s, is applicable to all actions for the recovery of property. But if the plaintiff had actual, prior possession of the land, this is strong enough to enable him to recover it from a mere trespasser who entered without any title.” From the cases, say Sedgwick & Waite (sec. 718), “it follows that where there is an absence of proof of title on either side, a presumption of .title in favor of the first possessor may be indulged.” Trial of Title to Land.
These rules of course require qualification, depending upon the character of the possession and the nature of the claim under which it was held. It is manifest that the possession must have been actual and exclusive according to the character of the land and the uses to which it was adapted, and that the claim under which it was held must have been of a title which, if
In the early case of Crockett v. Morrison, supra, the rule was laid down by this court as follows: “As the action of ejectment is a possessory action, where •no 'title appears on either side, a prior possession, though short of twenty years, will prevail over a subsequent possession which has not ripened into a title, provided the prior possession be under a claim of right and not voluntarily abandoned.”
It will be found in all cases where the question has been raised that the prior possession which will overcome one subsequently acquired by a mere intruder must have been accompanied with a claim of title, otherwise the parties will be left where they are found. Dale v. Faivre, supra; Norfleet v. Russell, supra; Alexander v. Campbell, 74 Mo. 146; Dunn v. Miller, 75 Mo. 272. The petition shows and the answer admits that the defendant at the commencement of the suit, in October, 1890, was and since March 17, 1884, had been in the actual possession of the south one hundred feet of the land in controversy. Under the foregoing rules defendant must prevail unless plaintiff has shown a prior actual and exclusive possession under claim of title.
Assuming that plaintiff and his grantor took the actual and exclusive possession when they built the
At the time the platform was built, plaintiff was occupying the house on the west half of lot 1 as the tenant of McElhaney. The platform was constructed under an ’agreement between plaintiff and McElhaney that the former should furnish the material and the latter would do the work. Plaintiff bought the' west half of the lot from McElhaney in 1884 and took a quitclaim deed after defendant had taken the exclusive possession. Under the conveyance to him plaintiff took no greater right than his grantor had acquired by his possession.
There were six lots in block 3, and a common understanding existed that there was a surplus of eight or ten feet more in the block than was called for by the plat. On cross-examination McElhaney testified that this nine feet was known as “stray” property, and the only basis of his claim was that it was “stray” property. “I thought if anybody ought to have it I ought. I owned three quarters of the block.”
So it appears that plaintiff and his grantor took and held possession, not under any claim of title or under a belief of ownership, but because they supposed no one else could assert a better title; that the property had no owner and they could take it. It was not shown that lot 1 was larger than shown by the plat, but it was shown that defendant’s building stood ten feet eleven inches in the street as platted and outside the east line of the lot. The occupancy by defendant of a part of the street does not create a surplus in the lot. The obstruction of the street is a matter between