Menkens v. Ovenhouse

• Decision Date: 31 October 1855
• Citation: 22 Mo. 70
• Parties: MENKENS, Appellant, v. OVENHOUSE, Respondent.
• Court: Missouri Supreme Court

22 Mo. 70

MENKENS, Appellant,

v.OVENHOUSE, Respondent.

Supreme Court of Missouri.

October Term, 1855.

1. Where in an action for the possession of land, the defence relied on is the statute of limitations, and the court finds that in the year 1818, one B., under whom defendant claimed, took possession of the tract sued for, under a deed of conveyance of the same, and let it out to various tenants at various times after the date of the purchase, until his death; that at all times since his purchase, B., and since his death his representatives have claimed the said land and exercised ownership over it, by entering upon it, by cutting timber and wood upon it, by prosecuting others for trespasses to the land, and by constantly having an agent living near the land with authority to superintend and protect it, and rent it out, and by regularly paying the taxes; that these successive possessions were actual, continuous, and adverse to the plaintiff and those under whom he claimed; held, that these facts found by the court warranted a judgment for defendant, notwithstanding it was also found that the land sued for was not used as a homestead or dwelling, and that during B.'s claim the land was often untenanted and uncultivated, sometimes for several years at a time; that at such times the fences were thrown down or destroyed, and the land lay open. (SCOTT, J., dissenting.)

Appeal from St. Louis Land Court.

Casselberry, for appellant.

1. There was no sufficient adverse possession. There should be an actual, hostile, distinct, visible and notorious corporeal occupation of the land during the whole of the time the statute has to run. (5 Cow. 219; 2 Johns. 230; 2 N. & McC. 343; 1 Rice, 10; 1 Metc. 528; 10 Johns. 477; 4 Mass. 416; 2 Aik. 364; 4 Bibb, 544; 1 Marsh. 59, 506; 5 Litt. 22; 6 S. & R. 21; 11 Gill & Jo. 371.) 2. The payment of taxes alone, though it may extend the limits of a possession, does not constitute it, and there must accompany it an actual occupancy of at least a part of the land. (10 Watts, 142; 4 Whart. 298.)

Gantt, for respondent.

1. The fact that the land was sometimes untenanted, and the fences occasionally thrown down, will not prevent the running of the statute of limitation. (17 S. & R. 104; 10 Id. 303; 7 Watts, 35; 3 Id. 69; 11 Pet. C. C. 41; 10 Pet. 442.)

RYLAND, Judge, delivered the opinion of the court.

The only question in this case is, will the finding of the facts by the court sustain the judgment rendered thereon? There is no evidence preserved on the record, no motion to review the finding of the facts by the court, and nothing for this court to consider but the finding of the facts and the judgment thereon.

The facts found are as follow: “A tract of land, whereof the land in controversy is part, was conceded by the lieutenant governor Piernas to Clement Delor de Traget, in 1771, and was confirmed to his representatives (not naming them) by the act of congress of 29th April, 1816. Pierre Marie (under whom plaintiff claims) was one of the grandsons of said Delor, being a son of one of his daughters by his first marriage. Pierre Marie's mother, Rosette by name, was married to Alexis Marie, by whom she had three sons, all of whom are dead. The first two, Alexis and Gregoire, died respectively in 1836 and 1849, and Pierre died this year, in the summer. Clement Delor de Traget died before the change of government, and both Alexis and Rosette Marie died before 1822. Clement Delor de Traget had ten children, sons and daughters, five by the first marriage and five by the second. Two of the sons by the first marriage died unmarried and without issue. C. Delor de Traget had a written contract of marriage with his second wife, purporting to establish a community of goods, according to the laws of Castile, and importing that he had made a like contract with his first wife. On the 20th October, 1851, Pierre Marie conveyed to the plaintiff all his right to the land, by a quit claim deed, for the consideration of two dollars. The annual value of said land is three dollars per acre. There was testimony tending to prove that before the year 1814, and after the change of government, persons other than the descendants and heirs of said Clement Delor, and among them one Glenn possessed and cultivated the land in question. On the 7th March, 1814, persons claiming to be legal representatives of Glenn conveyed the said land by deed to one Michael Tesson, called Honoré, and said Honoré entered upon the land under that conveyance, and possessed and cultivated the same. On the 24th of February, 1817, said Honoré, by deed, conveyed the said land to one Joseph Presse, who entered upon it under that conveyance, and possessed and cultivated the same. On the 19th March, 1818, said Presse, by deed, conveyed the said land to Bartholomy Berthold, who entered upon it under that conveyance, and possessed the same, and let it out to various tenants, at different times, from the date of his purchase, in 1818, till his death; some of which tenants cultivated the land, and others used it as a race course and place of amusement.”

After the death of said Berthold, his legal representatives had possession of said land, and the present defendant is their tenant. At all times, since the purchase of said land by said Berthold, he in his lifetime, and his representatives since his death, have claimed the said land and exercised ownership over it, by entering upon it, by cutting timber and wood upon it, and prosecuting others, and by constantly having an agent living near the land, with authority to superintend and protect it, and rent it out, and by regularly paying the taxes. The land was in the common field of Carondelet, and was not used as a homestead or dwelling place. During the time of Berthold's claim, the land was often untenanted and uncultivated; sometimes for several years at a time. At such times, the fences were thrown down or destroyed, and the land lay open. The land was in possession of said Honoré from the time of his purchase thereof, in 1814, until he conveyed it to Presse, as above stated. It was then in Presse's possession until he conveyed it to Berthold, as above stated. It was in Berthold's possession until his death, and ever since his death it has been and now is in the possession of his legal representatives.

And those successive possessions were actual, continuous, and adverse to the plaintiff and those under whom he claims. The conclusion of law upon these facts is, that the plaintiff ought not to recover in this action. All the issues arising on the pleadings, the court finds for the defendant.”

Now upon this finding, I am of the opinion that the judgment is warranted, and that it should be affirmed. Here has been a long possession--from 1814, forty years--a possession prior to the existence of the statute of limitations in the territory, now state of Missouri. But let it begin from 1818: “On the 19th March, 1818, Presse, by deed, conveyed the land to Bartholemy Berthold, who entered upon it under that conveyance, and possessed the same and let it out to various tenants, at different times, from the date of his purchase until his death; some of which tenants cultivated the land, and others used it as a race course and place of amusement.”

The land was not used as a homestead. The lower court expressly finds that the successive possessions of Honoré, Presse and Berthold, were “actual, continuous, and adverse to the plaintiff and those under whom he claims.” The only possible ground on which any doubt can arise as to this possession, is in what is stated by the court, “that during the time of Berthold's claim, the land was...