Mather v. Walsh

• Decision Date: 23 November 1891
• Citation: 107 Mo. 121,17 S.W. 755
• Parties: MATHER v. WALSH et al.
• Court: Missouri Supreme Court

17 S.W. 755

107 Mo. 121

MATHER v. WALSH et al.

Supreme Court of Missouri, Division No. 1.

November 23, 1891.

ADVERSE POSSESSION — ASSERTION OF TITLE — PURCHASE OF TAX-TITLE — COLOR OF TITLE — EJECTMENT — PRACTICE.

1. Where one through mistake takes possession under a deed of more land than it conveys, he may, notwithstanding, begin later an adverse occupancy of the excess.

2. The facts of this case show a title acquired by such occupancy.

3. The assertion of title by an occupant, as against plaintiff in the action, is sufficiently adverse, as to him, to start the limitation. It need not be an assertion of claim against all the world.

4. The purchase of a tax-title involves no concession by the purchaser of prior title in another.

5. One in possession may acquire any outstanding interest in the land without weakening the effect of his possession.

6. "Color" is not necessary to originate ownership under the Missouri statute of limitations. A claim of title with adverse possession (of the requisite character) for the statutory period will carry title, without any paper support thereof.

7. Plaintiff in ejectment must recover, if at all, on the strength of his own title.

8. Where the case involves plaintiff's evidence of title as well as defendants', it would be error to instruct for a verdict for plaintiff if the jury did not consider the defense as established, without also requiring a finding on the plaintiff's facts, offered to show title in him.

9. It is not error to refuse an instruction, the substance of which is embodied in another given.

(Syllabus by the Judge.)

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge. Affirmed.

Ejectment by one Mather against one Walsh and others. Judgment for defendants. Plaintiff appeals.

The other facts fully appear in the following statement by BARCLAY, J.:

Plaintiff sues in ejectment for part of lot 27, block 6, of "Peery Place," in Kansas City, Mo. His claim rests in part upon conveyances and in part upon adverse possession under the limitation law. The defendant's title stands wholly upon adverse possession. The defendants are Mrs. Johanna Maloney, her husband, James J. Maloney, and certain tenants of the former. The pleadings require no special notice. They were in usual form, raising the issues that were tried. The cause was heard with the aid of a jury, and resulted in a finding and judgment for defendants. The instructions mentioned in the opinion of the court are indicated below: At defendants' request the court gave (among others) the following: "(1) If the jury find from the evidence that defendant James J. Maloney has had and held by himself and by the tenants of his co-defendant, Johanna Maloney, the actual and peaceable, open and notorious, continuous and exclusive possession of the premises in controversy, under an exclusive claim of right thereto in his wife and co-defendant, Johanna Maloney, hostile and adverse to the claim of plaintiff to said premises, for more than ten years next before the commencement of this action, then your verdict must be for the defendants." The court refused to give either or any of the following instructions, asked by plaintiff: "(15) The jury are instructed that to confer title possession must not only be open, notorious, and continuous, but it must also be adverse. There must be an ouster or disseisin of the true owner, and an intention to claim the title; and this intention must have existed during the entire period of such possession. If you believe that when Maloney took possession of lots 28, 29, and 30 under the deed from Mrs. King he thought the vacant lot on the north side of his residence (lot 27) was a part of the ground he had purchased, yet, if he intended to claim only the ground he actually bought from Mrs. King, as described in his deed, and did not intend to claim any other lots than those called for in that deed, and used lot 27 as a yard or garden under the impression that it was a part of the ground he had bought from Mrs. King, then such possession of lot 27 was not a disseisin of plaintiff, and his possession thereof could never ripen into a title by lapse of time. If they intended to claim title only up to the north line of the lots named in their deed from Mrs. King, the fact that they thought the north line of lot 27 was their north line would give them no title by adverse possession to lot 27. (16) The jury are instructed that an intention to oust or disseise the true owner and to claim his title is not to be presumed from the mere fact of sole possession of the occupant; and though you may believe Maloney has been in the sole possession of lot 27 for more than ten years before the filing of this suit, yet, unless such possession was held with an intention of claiming the title as against all the world, and was accompanied by an open and notorious claim of exclusive ownership and right, they should find for the plaintiff. (17) If the jury believe from the evidence that plaintiff, at the date of the last tax-deed hereinafter mentioned, was the owner of the premises sued for herein; that said premises were sold by the city for delinquent taxes; that defendant Maloney obtained a certificate of purchase of said premises from the auditor of Kansas City, dated August 18, 1876, and on November 6, 1877, obtained a tax-deed thereto, dated on said November 6, 1877, — they are instructed that such purchase and acceptance by defendant Maloney was an admission that on the date of said tax-deed plaintiff was the owner of said premises; and defendants are not allowed to deny plaintiff's title at said date. The purchase for taxes and the acceptance of said tax was an admission that Maloney did not, at the date of said deed, own said premises, and that whatever occupancy defendants had at that time was subservient to and in recognition of the title of the owner of said lot. Defendants cannot, if they procured and accepted said deed, set up any adverse possession of said premises prior to the date of said deed. If you believe that plaintiff was the owner of the lot sued for at the date of said tax-deed, and that defendants accepted said deed, plaintiff is entitled to recover, unless defendants show that said deed divested plaintiff's title, or that his title has been destroyed in some other way. And it could not in such case have been destroyed by adverse possession unless defendants have been in the adverse possession thereof for ten years between the date of said tax-deed and the filing of this suit. (18) If the jury believe from the evidence that plaintiff, in 1872 or 1873, owned lot 27, and resided on the lot adjoining it on the south; that he obtained title to lots 27, 28, 29, and 30 by the same deed; that at that time lot 27 was inclosed by a substantial fence; that when plaintiff removed from said premises said lot remained so inclosed by said fence; that said fence was...