22 S.W. 1083 (Mo. 1893), Smith v. Catlin Land and Improvement Company

Citation:22 S.W. 1083, 117 Mo. 438
Opinion Judge:Black, P. J.
Party Name:Smith, Plaintiff in Error, v. Catlin Land and Improvement Company
Attorney:Henry H. Denison for plaintiff in error. Lee, McKeighan, Ellis & Priest for defendant in error.
Judge Panel:Black, P. J. Barclay, J., not sitting.
Case Date:July 03, 1893
Court:Supreme Court of Missouri
 
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Page 1083

22 S.W. 1083 (Mo. 1893)

117 Mo. 438

Smith, Plaintiff in Error,

v.

Catlin Land and Improvement Company

Supreme Court of Missouri, First Division

July 3, 1893

Error to St. Louis City Circuit Court. -- Hon. L. B. Valliant, Judge.

Affirmed.

Henry H. Denison for plaintiff in error.

(1) The recitals and descriptions in the deeds of Marie Louise Chouteau Papin govern the boundaries and location. Gillespie v. Sawyer, 15 Neb. 536; McAfferty v. Conover's Lessee, 7 Ohio St. 104; Piercy v. Crandall, 34 Cal. 343; Jackson v. Wendell, 5 Wend. 146; Jackson v. Sprague, 1 Payne, 494; Powell v. Clark, 5 Mass. 355; Jackson v. Barringer, 15 Johns. 471; Mills v. Miller, 4 Neb. 444. (2) The possession of one tenant in common is the possession of all, and the statute of limitations does not run in favor of such possession. Neither can a grantor set up, against his own deed, a possession against his own grantee. 1 Washburn on Real Property, p. 689: 2 Herman on Estoppel, pp. 741-743; Wade v. Lindsay, 6 Met. 407; Lamb v. Clark, 5 Pick. 193; Somes v. Skinner, 3 Pick. 52; Schwallbach v. Railroad, 69 Wis. 292; Freeman on Cotenancy and Partition, sec. 221.

Lee, McKeighan, Ellis & Priest for defendant in error.

(1) The deed of Hypolite Prouhet and wife to Robert Forsyth, dated March 11, 1851, by the express clause in it, conveys everything Hypolite Prouhet owned between Robert Forsyth, the grantee, on the south and James W. Kingsbury on the north. Distance description must give way to boundary description by adjacent owners. The latter is the more certain and less liable to mistake. Whittelsey v. Kellogg, 28 Mo. 404. (2) The parties to the foregoing deed of March 11, 1851, so construed the deed as between themselves, and the court will put the same construction on it that the parties did. Evans v. Green, 21 Mo. 170. (3) The plea of the statute of limitations is a bar to this action. Robert Forsyth took and had open and notorious and exclusive possession of the strip of land in question, and it was so held by him for twenty-three years after the deed was made, and up to the death of Robert Forsyth, in 1873, and by his trustee and their grantees up to the commencement of the suit. Smith v. McCorkle, 105 Mo. 135.

Black, P. J. Barclay, J., not sitting.

OPINION

[117 Mo. 439] Black, P. J.

This is an action of ejectment for the undivided one-half of the following parcel of land: Beginning in the east line of survey 378 at a point eighty-two chains and twenty-nine links southerly from the northeast corner of said survey, thence westerly on a line parallel with the north line of said survey one [117 Mo. 440] hundred and thirteen chains to the Skinker road, thence north one hundred and thirty-seven feet, four and one-half inches, thence easterly parallel to north line of said survey one hundred and thirteen chains to the east line thereof, thence south one hundred and thirty-seven feet four and one-half inches to beginning.

Marie Louise Papin acquired the entire survey by a patent from the United States dated in 1823. The survey was supposed to be forty arpens north and south and eighty arpens east and west, but it proved to be two hundred and thirteen...

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