15 S.W. 341 (Mo. 1891), Crawford v. Ahrnes

• Citation: 15 S.W. 341, 103 Mo. 88
• Opinion Judge: Thomas, J.
• Party Name: Crawford v. Ahrnes, Appellant
• Attorney: W. W. Fry for appellant. G. B. Macfarlane for respondent.
• Judge Panel: Thomas, J. Gantt, P. J., concurs. Macfarlane, J., not sitting, having been of counsel.
• Case Date: February 10, 1891
• Court: Supreme Court of Missouri

Page 341

15 S.W. 341 (Mo. 1891)

103 Mo. 88

Crawford

v.

Ahrnes, Appellant

Supreme Court of Missouri, Second Division

February 10, 1891

Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

W. W. Fry for appellant.

(1) All evidence as to the alleged contract was incompetent. (2) Ten years' consecutive adverse possession under claim of title gives the title to the occupant as effectually as any written conveyance. Allen v. Mansfield, 82 Mo. 688. (3) The defendant's first instruction was improperly refused. The land to the defendant's present fence was adversely held from 1865. The fact that Haskell moved the fence north in 1877, which was returned to its original position in 1880, did not affect the strip in controversy, for that strip was never abandoned, never disclaimed, never ceased to be used and occupied from 1865. The fence was not the only indicia of adverse possession; where the fence now is were government stones, the north and south hedge planted in 1865 ended there, the neighborhood regarded it as the true line, actual possession of the same from 1865 was had, and the fence maintained there from said date, excepting the three years when moved further north by Haskell. Moving the fence did not change the character of the actual possession of the land in controversy, but only of the Haskell strip north, never claimed by defendant. Leeper v. Baker, 68 Mo. 405-407; Draper v. Shoot, 25 Mo. 203. (4) Defendant's second instruction should have been given. The ten years' adverse possession need not be the ten years next before the date of the action of ejectment. The possession by defendant's grantors from 1865 to 1877 perfected the title. Allen v. Mansfield, 82 Mo. 693. (5) The trial court held that although defendant's grantors were in actual possession of the land he must further show by their declarations with what intention they held it and refused defendant's third instruction. It was sufficient to show they were in actual possession, maintaining a fence and claiming it by their acts without proving their intentions by their declarations. To prove intentions, other than by acts, would in most cases be impossible. If the possession is by mistake, actual possession works disseizin. Walbrunn v. Ballue, 68 Mo. 164; Cole v. Parker, 70 Mo. 378; McArmich v. Smith, 19 Mo.App. 240; Handlan v. McManus, 100 Mo. 124. "To prevent the operation of the statute a parol acknowledgment of the adverse title by the person in possession must be such as to show that he intends to hold no longer under a claim of right." Angell on Lim. 388. It would be a violent presumption to conclude they did not hold, claiming title. If they did not claim the land it was for plaintiff to prove that fact, not for defendant to disprove it. Actual possession and use was sufficient proof of claim of ownership. It might have been proper to have left it to the court, sitting as a jury, to determine from the evidence, whether defendant's grantors occupied the land claiming it as their own, but it was not proper to declare as a matter of law that this could not be found from their acts and conduct as asked in defendant's instructions. Walbrunn v. Ballue, 68 Mo. 164; Cole v. Parker, 70 Mo. 379. (6) The verdict is not supported by the evidence and is uncertain. The evidence was that defendant had three or four acres of the land inclosed, while the judgment is for "a strip of land off of the south end, of about five acres." A judgment for more land than entitled to will be reversed. Mourning v. Coal Co., 99 Mo. 322.

G. B....