Dyer v. Brannock

• Citation: 2 Mo.App. 432
• Parties: JOHN B. DYER et al., Appellants, v. JOHN BRANNOCK et al., Respondents.
• Decision Date: 10 June 1876
• Court: Court of Appeal of Missouri (US)

2 Mo.App. 432

JOHN B. DYER et al., Appellants,

v.JOHN BRANNOCK et al., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 10, 1876.

1. A sued several defendants jointly in ejectment, setting up separate holdings. He was ordered to elect against whom he would proceed, and did so, dismissing as to the others, and saving no exceptions to the order. Afterwards he became a nonsuit on another matter, which was set aside by the court in general term. Held, that, upon the cause being remanded to special term for trial, it was not competent for A to proceed against those defendants as to whom he had dismissed before becoming nonsuit.

2. A cohabited with B, and a child, C, was born of this intercourse. He subsequently married D, to whom a child was born, who survived D, but died in infancy. Afterwards A resumed his intercourse with B, living with her until his death, acknowledging the child, C, as his, but no marriage ceremony of any kind took place between them at any time. D died seized of real estate, and the descendants of C claimed it as the heirs of A, alleging that A inherited it from his deceased child by D. Held, 1. That C was a bastard child of A. 2. That nothing was done which legitimized C. 3. That the descendants of C could not claim title as the heirs of A.

3. If a right of action to recover real estate accrued to a person under disability after February 2, 1847, then such person's right of action is forever barred, if suit be forborne for twenty-four years, notwithstanding such disability.

4. If such disability continue for ten years or more, but less than twenty-four years, during which time suit is forborne, and, upon the removal of the disability, three years in addition elapse without suit, the bar is complete.

5. It is error to instruct a jury as to the effect of adverse possession without also instructing them as to what constitutes adverse possession.

APPEAL from St. Louis Circuit Court.

Affirmed.

Pope & Randall, for appellants, cited: Wag. Stat. 531, sec. 11; Linceum v. Linceum, 3 Mo. 441; Stones v. Keeling, 5 Cal. 145; Sleigh v. Strider, Ib. 439; Rice v. Efford, 3 Hen. & M. 224; Johnson v. Johnson, 30 Mo. 72; Buchanan v. Harvey et al., 35 Mo. 281; Graham v. Bennett, 2 Cal. 503; 1 Ter. Laws of Mo. 66, sec. 3; Holabird v. Atlantic Mutual Life Ins. Co., Am. Law Reg. Sept. 1873, 566; 1 Bishop's Mar. & Div., secs. 3, 229, 269, 272, 277, 283; Schouler's Dom. Rel. 40, 41; 2 Kent's Com. (12th ed.) 87; 2 Greenl. on Ev. sec. 460; Fenton v. Reed, 4 Johns. 52; Clayton v. Wardell, 4 N. Y. 230; Londonderry v. Chester, 2 N. H. 279; Chiseldine's Lessee v. Brewer, 1 Har. & McH. 152; Canjolle v. Ferris, 26 Barb. 177; Van Tuyl v. Van Tuyl, 57 Barb. 235; Carmichael v. The State, 12 Ohio, 553; The State v. Fry et al., 4 Mo. 120; Keer v. Barnes, 29 Mo. 377; Jackson v. Hazen, 3 Johns. 441; Fosgate v. Herkimer Mnfg. Co., 2 Kern. 580; Vorhie's Pr. 598; Keene v. Baine, 29 Mo. 377; 2 Sellon K. B. 178, 196, 229; Rem. on Eject. 59, 187, 188; Barnes, 176; Buller N. P. 98; Jackson ex dem. Haines v. Woods et al., 5 Johns. 278; Grimstone v. Bourgess et al., Barnes, 176, 196; Jackson v. Andrews, 7 Wend. 158; Pickering's Lessee et al., 12 Serg. & R. 435; Cambden et al. v. Haskill, 3 Ran. 462; Adams on Eject. 262, 291; Tyler on Eject. and Adv. Poss. 625, 637, 642, 644, 649; Hickman v. Boyd, 1 Mo. 495; Jones v. Snedecor, 3 Mo. 390; Pratt v. Rogers, 5 Mo. 51; Downing v. Boweleier, 21 Mo. 149.

Cline, Jamison & Day, for respondents, cited: Richards v. Brehem, 73 Penn.; Russell v. Bissell, 55 Barb. 325; Guardians of the Poor v. Nathans, 2 Brew. 149; Lenscum v. Lenscum, 3 Mo. 441; Wag. Stat. 916, sec. 4; Smith v. Bartis, 9 Johns. 181; Demarest v. Wynkoop, 3 Johns. Ch. 129, 133; Doe v. Jesson, 3 East, 309; Bush v. Bradley, 4 Day, 298; Bunce v. Wolcot, 2 Conn. 27; Doe v. Jones, 47 T. R. 200; Stowell v. Zoak, Plowd. 353.

GANTT, P. J., delivered the opinion of the court.

This was an ejectment, commenced on August 11, 1872, to recover possession of part of survey 3,182, of a confirmation by the act of 1836, to the representatives of Motard, lying in the cul-de-sac of the Grand Prairie common field. Upwards of 100 persons occupied different parts of this land. They were all sued together as joint trespassers. They answered separately, denying the title of plaintiff, and also denying any joint occupation. Each set up his several holding. The statute of limitations was also set up in each case. Some alleged a possession of twenty-four years, others thirty-six. Plaintiffs demurred to some of these answers, and moved to strike out others of them. The court overruled both motions and demurrers. The case came on for trial in February, 1873. The court ordered the plaintiffs to elect against which of the defendants they would proceed, and to dismiss the suit as to all the other defendants. Whereupon plaintiff elected to proceed against Brannock, and dismissed as to the other defendants. At a later period of the trial plaintiff became non-suit, with leave etc., and the general term set this non-suit aside. The cause came on to be tried again in November, 1874, when there was judgment for defendant Brannock, which was affirmed in general term, and the case comes before us by appeal. When the cause was tried in November, 1874, plaintiffs claimed, notwithstanding their dismissal of the suit as to all but Brannock, to be entitled, by virtue of the reversal of the ruling by which they had been driven to a non-suit, to proceed against all the original defendants. The court refused to allow this, and plaintiff excepted. At the trial evidence was given of a confirmation to Motard's representatives of a tract of land in the cul-de-sac of the Grand Prairie, and that James Daud and Sally Adams were such representatives as to a portion of this tract. Sally Adams was, in November, 1824, married to Zachariah Wilson. She died in child-bed, in 1826, leaving a child, who died in 1827.

Zachariah Wilson was a river-pilot. On August 24, 1819, he agreed with Jane Collins that they would thereafter live together as man and wife. This agreement they communicated to the mother and brother of Jane, and to some boarders in the family, and, about ten o'clock, p. M., Jane and Zachariah retired to an apartment prepared for them. They cohabited until September 13, 1819, when Wilson left her and accompanied Major Long on his celebrated expedition westward. She appears to have seen no more of him until 1830. At that time she was living in St. Charles with her daughter, Cynthia Elizabeth, the fruit of her connection with Wilson. This child, she tells us, was born on April 28, 1820. Wilson wrote to her that if she would come to St. Louis and live with him again he would take care of her and her child, which he acknowledged to be his also. She consented to this, and thereafter lived with him until his death, in 1836. Cynthia lived with them, and Wilson acknowledged her as his daughter. Shortly after Wilson's death, Cynthia married Abner Dyer, and the plaintiffs are the children of that marriage. Cynthia died in July, 1869; Abner in June, 1870. After Wilson had gone away, Jane Collins heard from others that he had left a wife and children in his native State. He was about twenty-seven years old in 1819; she was about nineteen. From first to last no marriage ceremony took place between Jane Collins and Zachariah Wilson. The nearest approach to it was their standing up in the parlor of her mother's boarding-house, in St. Louis, on August 20, 1819, joining hands, and assenting by bowing their heads, in the presence of several witnesses, to the statement that they were going to live together through life, and then retiring. All these facts appear by the testimony of Jane Collins, or Jane Wilson, who testified at the trial as a witness for plaintiff, and who seems to have told the truth with great candor.

After the death of Wilson, a proceeding in partition was commenced, in which the tract of land sued for was set off and allotted to the “unknown heirs of Zachariah Wilson.”

There was evidence tending to show that defendant, and those under whom he held, had been in possession of the land, with claim of title from 1844 to the commencement of this suit, claiming it as their own.

The court charged the jury as follows:

“You are instructed that the premises sued for are part of a tract of land confirmed to the representatives of Joseph Motard by the act of Congress of July 4, 1836, and that the title to the premises was vested in Sarah Ann Adams at the time of her death. The plaintiffs seek to recover as the alleged descendants of Zachariah Wilson, to whose heirs, then unknown, the portion of the Motard tract which included these premises was set apart by the decree of the St. Louis Circuit Court rendered in 1838. Whether the plaintiffs can recover as the descendants of Zachariah Wilson will depend upon their having established (1) that they are such descendants, and (2) that Wilson himself, having title to the premises sued for at the time of his death, transmitted such title, by descent, to the plaintiff.

If you believe from the evidence that one Cynthia Elizabeth Wilson was the daughter of Zachariah Wilson, that said Cynthia Elizabeth married one Abner W. Dyer, and that plaintiffs were born of such marriage, then you will find that plaintiffs are the descendants and heirs of Zachariah Wilson. If you believe from the evidence that Wilson was married to Sarah Ann Adams in the year 1824, that a child was born of such marriage, that Sarah Ann died leaving such child surviving her, and that Wilson survived said child, then, upon the death of such child, the title to the premises in controversy became vested in Zachariah Wilson; and if you further find from the evidence that, in the year 1819, at the town of St. Louis, intending thereby to contract marriage, the said Wilson and one Jane Collins mentioned [ sic] agreed to live together thenceforward as man and wife, and that of the union thus...