22 S.W. 472 (Mo. 1893), Hickman v. Link,

Citation:22 S.W. 472, 116 Mo. 123
Opinion Judge:Brace, J.
Party Name:Hickman, Appellant, v. Link, et al
Attorney:John W. Booth for appellant. A. McElhinney for respondent, Martin Link. Phillips & Stewart and C. H. Henderson for respondents.
Judge Panel:Brace, J. Barclay, J., absent.
Case Date:May 22, 1893
Court:Supreme Court of Missouri

Page 472

22 S.W. 472 (Mo. 1893)

116 Mo. 123

Hickman, Appellant,


Link, et al

Supreme Court of Missouri, First Division

May 22, 1893

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards, Judge.

Reversed and remanded.

John W. Booth for appellant.

(1) The owner of land is not required either to use it or to continually make assertion of his title. In the absence of an actual possession of some part of his land, his title carries with it the legal seizin and constructive possession. Douthitt v. Stinson, 63 Mo. 268; Turner v. Baker, 76 Mo. 343. (2) The seizin of land cannot be in abeyance or suspense. 1 Washburn on Real Property [5 Ed.] top p. 67, sec. 96. (3) If a seizin be admitted or proved in any one, the law presumes it to continue until negatived by evidence by him who alleges a disseizin. 3 Washburn on Real Property [5 Ed.], top p. 156, sec. 27. (4) The law never raises a constructive possession against the owner of the land. 3 Washburn on Real Property [5 Ed.], top p. 164. (5) "Seizin in fact" necessarily implies possession. 1 Washburn on Real Property [5 Ed.], top p. 62, sec. 75. (6) Possession, to give title under the statute of limitations, must be visible, notorious and continuous, for the full period prescribed. Musick v. Barney, 49 Mo. 458; Pike v. Robertson, 79 Mo. 615. (7) Where a large tract covers small tracts of land owned by different persons, possession of one of the small tracts, under color of title to the large tract, is not constructive possession of any other of the small tracts; the other small tracts being unoccupied, the law casts the constructive possession on the owners of the true title. Schultz v. Lindell, 30 Mo. 310; Tayon v. Ladew, 33 Mo. 205; Leeper v. Baker, 68 Mo. 400. (8) To give color of title, there must be something in the nature of a transfer, by act of a party or by operation of law, from a preceding real or supposed owner. And, whatever this may be, it must be of such a character as to afford a basis for a bona fide claim of ownership of title. Good faith is indispensable. A party cannot manufacture color of title for himself, and a mere claim is not sufficient. St. Louis v. Gorman, 29 Mo. 593; Fugate v. Pierce, 49 Mo. 441; Crispen v. Hannavan, 50 Mo. 536; Rannels v. Rannels, 52 Mo. 108; Mylar v. Hughes, 60 Mo. 105; Hamilton v. Boggess, 63 Mo. 233; Hughes v. Israel, 73 Mo. 538; Gaines v. Saunders, 87 Mo. 557; Wright v. Mattison, 18 Howard, 50. (9) The legal title to land cannot be divested by abandonment. Only possessory rights not ripened into title may be so divested. Ferris v. Coover, 10 Cal. 617; Robie v. Sedgwick, 35 Barbour 319; Mayor v. Biddle, 25 Pa. St...

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