148 Mo. 449 | Mo. | 1899
This is an action in ejectment to recover tbe possession of tbe east half of the southeast quarter of 'section 14, the west half of tbe southwest quarter of section 13, and the west half of tbe northwest quarter of section 24, all in township 41, range 17, in Morgan county, Missouri, instituted January 2, 1890, by plaintiff as tbe owner of tbe same by patent from tbe United States government, issued November 1, 1859, against defendant, who claims title by adverse possession for tbe statutory period of limitation, interposed under a general denial.
Tbe case was before this court at its October term, 1895, and is reported in tbe 133 Mo. 367, when it was reversed and remanded for a new trial. At tbe last as at tbe former trial
At the former hearing of this case in this court there was no other evidence showing a continuous adverse possession of this land or any part of it by defendant and those through whom he claimed except as was found in the statement read in evidence as the testimony of Mrs. Lidia Stephens, and that the majority of this court then held was worthless as evidence, being but a statement of conclusions rather than a statement of facts, and on account of the admission of same as testimony- the judgment then rendered for defendant was reversed and the cause remanded for a new trial. In that opinion this court then further said, that as to the eighty acres of land in section 24 and all that part in section 13 not in the actual occupancy of the defendant and those through whom he claims, the plaintiff ought to have recovered.
’With practically the same testimony offered affecting plaintiff’s and defendant’s rights to those two eighty acre tracts of the land, as offered at the former trial, the circuit court has again, in the face of this court’s suggestion, compelled plaintiff'to prosecute a second appeal to this court, to prevent the unlawful appropriation of his land by defendant without the shadow of a claim thereto, except to a possible strip twelve by fourteen feet square, on which the cabin of Mrs. Stephens was located, if its location" could now be definitely ascertained and if the self-contradicted testimony of the defendant could have been believed.
The facts as developed at the first and at the second trial of this cause are substantially identical except that at the last trial defendant did not have the benefit of the statement, read to the jury, as the testimony of Mrs. Stephens, this court, as before said, having on the first appeal declared it worthless as testimony, and in the further particular that at
But whether the difference in defendant’s testimony at the first and last trial of this case is accounted for on the ■grounds of his bad remembrance, as he explains it, or upon the ground that he, like many of renown, has arisen to the necessity of his surroundings, is a matter of no concern here for the verdict gives to defendant’s last testimony the force of absolute verity, and as such we must treat it after verdict, still there is no testimony upon which a verdict should have been rendered or upon which- a judgment can be bottomed for either of the tracts of land in controversy, or any part of •said tract or tracts.
Numerous errors have been assigned by the plaintiff for the reversal of the judgment entered herein, but as the first ■assigned, the refusal of the court to instruct the jury to return
Give to tbe testimony offered in this case in behalf of defendant every possible inference that conld be reasonably drawn therefrom, consider the clearest hearsay testimony, permitted to be detailed before the jury, as legal and proper, from every and all facts thus shown the judgment should have-been for plaintiff, and there is no excuse for this case again being before this court on plaintiff’s second appeal after what, was said by this court when the case was here on its first appeal.
The facts in this case show that plaintiff acquired title-to the land in suit by patent from the United States Government on November 1,1859, and frord that time to the present, has been the record title owner of the land, and has paid the taxes upon all of the same up to the time of the institution of this suit, except for the years 1860 and 1866 the taxes appear not to have been paid upon the east half of the southeast quarter of section 14 thereof, and that eighty acres of the land was sold for taxes assessed against it for those two-years, in the year 1867, and that O. C. Brown and George P. Clark became the purchasers thereof at said sale, and on the-twenty-fourth day of April, 1869, the collector of Morgan county made to said Brown and Clark a deed therefor; that, thereafter on October 4, 1881, Brown and Clark by quitclaim, deed conveyed said east half of the southeast quarter in section 14 to this defendant, and that he in the latter part of the year 1881, or the early part of 1882 moved into an old log cabin twelve by fourteen feet square without roof or floor, standing on the west half of the southwest quarter of section 13 of the land in suit, in which, defendant says, Mrs. Stephens-was then and had been living for the past three or four years-prior to that time; and as if to be extremely accurate least the chain of continuity as to the possession of the cabin (bis, then only foothold upon his land), be broken (and not having,
There was also testimony offered tending to show that another cabin had been built and occupied by parties on the east half of the southeast quarter of section 14, but when, •or by whom, it was built, how long it was occupied or when ; deserted and torn down, no one seems to know. At any rate its possession was not connected with that of defendant so ■as to be continuous for a time sufficient to ripen into a title •adverse to that of plaintiffs.
Neither Clark nor Brown .at any time ever took possession of the land in section 14 covered by their tax deed, or .any other portion of the land in controversy; but Clark testi-. fied that Brown told him that Mrs. Stephens was their tenant, and that she was holding the land as their tenant. Of the nature of the tenancy of Mrs. Stephens, when it began, when it was to terminate or did terminate, he was in complete! ignorance and knew nothing. So far as disclosed by the testimony in this case Mrs. Stephens never paid or agreed to pay a cent as rent to Brown and Clark or either of them or any ■one else. She paid no taxes upon the land, made no improvements thereon, other than the original building of her cabin,
If however it be conceded that all was established that-defendant contends for, “that Mrs. Stephens was the tenant in fact of Clark and Brown and had occupied for three or four years, or longer, the cabin in which she was living in section 13, before the defendant moved into and took possession of it in the latter part of the year’ 1881 or the early part of the year 1882, and that while in said cabin as tenant of' Clark and Brown, she claimed in their name, all the land in controversy, up to the time and date that Clark and Brown conveyed by quitclaim deed to defendant the east half of the-southeast quarter of section 14, and that Mrs. Stephens then delivered her possession of the cabin to defendant and surrendered to him all her right as tenant of said Clark and Brown,” still defendant has no claim or right adequate to-defeat the action of plaintiff, as the title owner of the land in suit or of any part of it.
There is no pretense that any one was ever in the actual occupancy of the west half of the northwest quarter of section 24 before defendant moved upon the land in the year 1881 or 1882, or that any one with whom the defendant or his grantors were in any wise connected or related was ever in the actual occupancy of any part of the east half of the-southeast quarter of section 14 before that date, and as to the west half of the southwest quarter of section 13 there was no
This case seems to have been tried upon the erroneous and novel theory that if defendant and those through whom he claims had been in the open, notorious, adverse and continuous possession of any part of the land in suit to which plaintiff held title, claiming the whole thereof for ten consecutive years, with color of title to a part thereof in defendant, that defendant’s title to all the land included within the boundary of plaintiff’s deed would vest in defendant by limitation. Upon no other theory,.under the facts in this case, could a judgment for defendant have been rendered, or be maintained.
Until defendant actually inclosed with a fence the one acre of ground in section 14, after he moved into the cabin in section 13, the constructive possession of that entire eighty acres would certainly have followed and been in the plaintiff, the holder of the legal title of record of said land, and did not follow the mere color of title, furnished by the unrecorded-tax deed of Clark and Brown. Thus defendant’s actual occupancy of the one acre in that section since 1881 or 1882,
As to the land in section 13, defendant’s position to it is little or no better than to the land in section 24. To it neither he, Clark nor Brown ever had any claim of title. The possession of the cabin on the eighty acres by Mrs. Stephens for several years prior to defendant’s entry thereon gains no additional merit by calling her the tenant of Clark and Brown. Her possession, whether as tenant of Clark and Brown, or as a mere independent trespasser upon her own responsibility, would not extend beyond the limit of the land actually subjected to use, and that was but the small space of twelve by fourteen feet square upon which her cabin was standing. Any mere mental boundary which she might have thrown up around this eighty acres, or around it, in connection with the other two eighties from her cabin door in the name and behalf of Clark and Brown, as their tenant, was no less invisible to the plaintiff and those looking after the land for him, than that construed by Clark and Brown from their office in Versailles fifteen miles distant. So, as to this eighty acres there was no open, adverse and continuous possession by defendant, and those through whom he sought to claim for the