82 Mo. 317 | Mo. | 1884
This is an action of ejectment for the northeast quai’ter of sectioxx 14, township 58, range 21, in Linn comxty, Missouri. Suit was commexxced ixx the Linn circuit coux’t oxx May 12, 1871. The petitioxx is in the usual form. The answer a general dexxial. A change of vexiue was afterward awarded to the Putnam circuit court, where the cause was tx’ied by a jury, resulting in a verdict for the defexxdaxxt, and judgment accordingly, from which the plaixxtiff has appealed to this coux't.
Oix the trial neither pxlaintiff nor defexidant offered axxy pxaper title to the land in controversy. The plaintiff, however, in suppxort of the issues on his side, offered evidexice tcixding to show, that, oxx the 19th of March, 1869, the defondant and his son, Silas E. Tlxomp>soxx, wex’e livixxg together ixx a cabixx, sitxxated on the land in controvex’sy, axxd surrounded by a field or enclosure of some ten acres, or xxxore, which the son claimed to owxx. A part of the ixxclosure seems to have been on the noi’thwest quarter of said sectioxx, and the balance with the house oix the land ixx coxxtrovex’sy. The plaixxtiff’s evidence further texxcled to show that the house was first built on the uox’tlxwest quarter of
On the part of the defendant the evidence tended to show, that the first improvement on the land in controversy was made by the defendant, James N. Thompson, in 1861; that the improvements consisted of a small house, a cabin, with fencing around it, and was claimed and occupied by the defendant; that, some five or six acres were fenced in 1865, 1866 or 1867 ; that the old man built the fence ; that he made the rails and has lived there most, if not all, the time since; that the old man first commenced on the land in 1861; that Silas, his son, was a boy and came with his father; that they settled on the northeast quarter first; that he built the house first on his land, and then moved it out; that the old man claimed to own and to be upon the northwest quarter and did not claim to own the northeast quarter; that the old man and Silas cultivated the field in 1869, and planted a crop in the spring of 1870 1 that Silas married some time about 1862 or 1863 ; that Silas lived sometimes at home, and sometimes at other places ;
The plaintiff was also sworn as a witness in his own behalf and testified as follows: “About the 19th of March, 1869, the day before the lease was made, I went to where this land was and saw Silas E. Thompson, and the defendant here, chopping close to this land, but on the northwest quarter. I asked Silas who the improvements’ on the northeast quarter belonged to and he said they belonged to him; I then asked him what he would take for the possession and improvements, and he said $200, if I would let him move the cabin off; Silas then said he would see the old man; if he concluded to take the $200, would come to town next day. Silas and I then agreed that I would consult Judge Brownlee, and that he should come to Linneus next day and I would tell him what I would do ; Silas came to town next day, and when I saw him he asked me what I had concluded to do, and I told him that we could trade ; I gave him my note for $200, due the next Christmas, and he made the first lease ; old man Thompson, the defendant, was present during all the talk Silas and I had down where t-Key were chopaping ; he did not inform, or intimate to me that he held or claimed either the possession or improvements; the only thing he said was to-Silas, that he had better not trade ; he heard all that passed between Silas and me about the matter there. After the note was due and I had paid it, Silas told me that the old man was setting upa some claim. I did not know that the defendant made any claim to the possession or improvements. I had bought stock from the place several times, and always traded with Silas, and never heard any objection from the defendant. I never had any conversation with tire defendant about it; he was not present when the note was executed or lease taken by Silas.
“Know all men by these presents that I, .JoelIT. Wilkerson, have rented and leased to Silas E. Thompson, the northeast quarter of section fourteen (14), township fifty-eight (58), range twenty-one (21), from this date until the 25th day of December, 1870; said Thompson is to continue in the possession from this date, and is to pay rent at the rate of $5 per annum, and to hold possession of said land to said Wilkerson, to preserve the timber on the land, to cut no timber nor take any off the land, and agrees to give up the possession to said Wilkerson at any time he may demand the same, during the said time herein described, reserving the part on -which any crop may be growing until the end of the term and to give possession of all the land at the end of his time without notice. Signed this 21st day of April, 1870.
Silas E. Thompson, [seal.]
“Know all men by these presents that I, Joel TI. Wilkerson, have rented and leased to Silas Thompson the northeast quarter of section fourteen (14),in township fifty-eight (58), in range twenty-one (21), for the term of one year from the date of this lease; said Thompson is to have possession immediately, and is to pay rent for the use of the same at the rate of $5 per annum; said Thompson agrees to hold possession of said land to said Wilkerson, to preserve the timber on the land, to cut no timber nor take any off the land, agrees to give up the possession to said Wilkerson at any time he may demand the same during the said time herein leased, reserving the part on which any crop may be growing until the end of the year, and to give full possession of all the land at the end of the year without notice. Signed this 20th of March, 1869.
Silas E. Thompson.”
By agreement between the undersigned the within
J. EL. Wilkerson,
Silas F. Thompson.
The plaintiff’ also introduced A. D. Christy, who testified as follows, to-wit:
“Was present when the line between the northwest quarter and the northeast quarter, 14, 58, 21, was run, surveyed in' 1866 or 1867; the defendant was present and said the corner between the two tracts of land was too far south. Wilkerson paid me $200 on a note given by him to Silas F. Thompson; the note was paid about the 25th of December, 1869.”
On cross-examination the said witness stated: “ Three or four acres of the improvement by that survey wore on the northeast quarter, 14, 58 21, and the house in which the Thompsons resided was on the northeast quarter, and part of three strings of fence enclosing in part the three or four acres.”
The defendant was also sworn as a witness in his own behalf, and testified as follows, to-wit: “ Know this land since 1860; took possession of both quarters in 1860. In 1869 I had ten acres improved. I built on the northeast quarter first in 1860 ; moved the house in July, 1866, further out on the same quarter ; I remained on the land since I first built there; Wilkerson came to Silas and myself when we were at work. Wilkerson, Silas, what do you say to signing a lease to the land inside the field; said he would put $5 in the lease, but did not care whether it was paid or not. I asked Wilkerson if he had the old patent on the land, and he said yes, and pulled out a paper which was bogus. I know a good title when I see it; President Monroe never signed that paper. I then said to Silas, £ keep your hands out of it, sir.5 The improvements on the land were worth $400 or $500 when Silas traded with Wilkerson. I made the improvements on this land myself,
The plaintiff here admitted that the land sued for was military bounty land of the war of 1812, patented by the United States to the soldiers in 1819.
The defendant, also, offered his son, Silas E. Thompson, as a witness in his behalf, who testified as follows, to-wit: ■“ My name is Silas E. Thompson, age is 32 years, my residence is Linn county, Mo.; I have been acquainted with the tract of land in controversy since 1864; I don’t know when I first saw the place that any improvements were on it; the first improvements that I know of were made m 1866 ; the old man and I made the improvements; my mother died in the year 1864, in July or August; my father was living at that time in the bottom ; I do not remember upon which quarter; the house was moved on this land ■by my father in the year 1866 ; it was a log cabin about .14 by 16 ; it was used for a dwelling by my father and my;self; after it was moved it was rebuilt; after I moved there, my father has continued to live there on the same tract ever since from 1866 till 1870; I lived there in the spring of 1870; I moved to Eusly Ralph’s place, about 100 yards from this place ; I moved back in February, 1872; I think during my absence the old man resided upon this same bract; I remained there after moving back from Yellow Creek about one year; I went upon this quarter section in 1866 ; there have been a couple acres about the house and
Cross-examined: “ When the trade was made between myself and Mr. Wilkerson, I was on southeast section 14,.
Re-examined : “ "When I was away I supposed the old man done his own trading; when I was living with him we worked together, and all was put in alter I went-there except about one acre around the house. The note given mo was to secure the possession'of the northeast quarter; I did not give possession at the time of the trade because I had no house to go into ; I do not think I ever paid any rent; do not think Mr. Wilkerson ever asked me for any.”
At the close of the testimony, the court gave the following instructions for the plaintiff, to which defendant excepted:
1. If the jury believe from the evidence that in the month of March, 1869, and prior thereto, one Silas E. Thompson was in the possession of the northeast quarter of section 14, township 58, range 21, in Linn county, Missouri, and that in the said month the said Silas sold to plaintiff the improvements and possession thereof, representing himself as the owner thereof, and that the plaintiff relying upon such representations, and having no means of knowing them to be false, paid the said Silas $200 for said improvements and possession, and that the defendant, James N. Thompson, was present during the negotiations for said sale, and knew of the same, and did not disclose to the plaintiff at the time any claim to the land or the possession thereof, (and that the said Silas, during a part of the year’ 1869 and 1870, occupied said lands, or any part thereof
2. If the jury believe from the evidence that in the month of March, 1869, and prior thereto, one Silas E. Thompson was in possession of the northeast quarter of section 14, township 58, range 21, in Linn county, Missouri, and that in the said month the said Silas sold to plaintiff' the improvements and possession thereon, representing himself as the owner thereof, and that the plaintiff' relying upon such representations, and having no means of knowing them to be false, paid the said Silas $200 for said improvements and possessions, and that the defendant, James N. Thompson, was present during the negotiations for said sale and knew of the same, and heard offer to purchase and said Silas to sell same and did not disclose to the plaintiff' at the time any claim to the land or the possession thereof, then the law precludes the said James N. Thompson from now setting up any claim or title to said lands or the possession thereof which he then had or now claims to have then had.
The court then gave the following instructions for the defendant, to which the plaintiff excepted.
6. Although the jury may believe from the evidence that Silas E. Thompson took the leases from plaintiff, which have been read in evidence, yet if they further believe that defendant was not a party to cither of said leases, and that he remained in the actual possession of said premises from the time of the sale from Silas to "Wilkerson, claiming the premises as his own, then the fact that Silas E. Thompson took the leases from Wilkerson, did not stop or prevent the statute of limitation running in favor of defendant.
7. Although the jury may believe from the evidence that Silas E. Thompson sold plaintiff, with the consent of the defendant, the possession and improvements of and on the premises here sued for, on or about the 20th day of March, 1869, yet if they further believe from the evidence
The court then also gave the following instructions for the plaintiff: “ If the jury believe from the evidence that Silas E. Thompson was in the possession of the land sued for under the lease read in evidence, within two years before the 12th day of May, 1871, then plaintiff’s right of action is not barred by the statute of limitation, as set forth in the instructions for defendant.”
To the giving of which defendant at the time excepted.
Under these instructions, the jury, as before stated, found a verdict for defendant, and there was judgment accordingly, from which the plaintiff has appealed to this court, and now insists that the trial court erred in giving for the defendant, the foregoing instructions No. 6. and 7. Among other objections, appellant insists: 1st, That each of said instructions, by necessary implication, assumes that defendant, at and before the date of the sale and lease, in question, was in the actual possession of said premises ; which, it is contended, was one of the controverted facts, that should have been submitted, and left to the jury for their determination. 2d, That, under the evidence in this cause, the remaining or continuing in possession, under claim of title, by defendant thereafter, for the statutory period in question without more, was not sufficient to confer title by limitation, unless it also appeared that a knowledge of that fact was in some way brought home to the plaintiff, and that thereafter and prior to the institution of this suit he so remained or continued for the statutory period in question, and that said instructions should have so told the jury.
Under the authorities these objections we think, are well taken. It has repeatedly been so held by this court; and the adjudications elsewhere, as well as text writers, are
The theory of defendant’s instructions concedes the correctness of the instructions given for the plaintiff', but attempts to escape their force and effect by claiming that, while the defendant may be estopped from setting up the possession and ownership he may have had at and prior to said sale and lease, yet that it is competent for him, under the statute of limitation, to set up and rely upon a possession and ownership acquired or obtained, subsequent to that date, and held by him adversely under claim of title, for the statutory period in question, after such acquisition and prior to the institution of this suit. This it is conceded he may do. But, it is denied that defendant’s instructions above given, properly construed, contemplate or submit that question to the jury. On the other hand, the jury, in effect, are told by these instructions that the remaining or continuing m possession, by defendant, under claim of title, for the statutory period, from and after said sale and lease, was of itself sufficient to defeat the plaintiff’s recovery, although the jury might believe the facts, predicated in the instructions given for the plaintiff.
This, we'think, was not a correct presentation of the law, applicable to the facts of this case, as disclosed by the record. Eor such purpose there is a material and manifest distinction, between the acquisition of an original or new possession, after the date of said sale and lease, and the simple continuance of an old possession, that may have existed prior thereto. Under the facts predicated in plaintiff’s instructions, the possession and ownership of the premises, at and prior to said sale and lease, as against this defendant, were indisputably with Silas Thompson, the son ot defend
These views are altogether ignored in defendant’s said instructions, and in these particulars they are erroneous and misleading. Eor these reasons, the judgment of the trial court is reversed and the cause remanded for further trial.