Swope v. Ward

• Citation: 84 S.W. 895,185 Mo. 316
• Parties: SWOPE et al. v. WARD et al.
• Decision Date: 22 December 1904
• Court: United States State Supreme Court of Missouri

84 S.W. 895

185 Mo. 316

SWOPE et al. v. WARD et al.

Supreme Court of Missouri, Division No. 1.

December 22, 1904.

ADVERSE POSSESSION — OUSTER — EJECTMENT— EVIDENCE—DECLARATIONS—APPEAL— REVERSAL—HARMLESS ERROR.

1. Adverse possession is a possession in opposition to the true title and real owner, and implies that it commenced in wrong (by ouster or disseisin), and is maintained against right.

2. Where a person claiming title to land by adverse possession entered in the beginning under a claim of ownership, with an intention to claim the land, his entry constituted an ouster of the legal possession in the holder of the legal title arising therefrom, and hence he was not a mere squatter.

3. Where defendant claimed title to land in controversy by adverse possession, oral declarations by plaintiff's predecessor in interest, while in possession, that he owned the land, made either to third persons or to the owner of the record title, are admissible to show the character of plaintiff's possession, and the intent with which the possession was originally taken.

4. After plaintiff's predecessor in title had been in possession of the land in controversy for nearly 20 years, he stated to the holders of the record title in 1887 that he had bought the land in 1867, and concluded to live there as long as he lived. They replied that they would eject him, and he told them to "go ahead," and declined to pay rent demanded. Suit was not brought to recover the land until March 7, 1898. Held, that such conversation constituted personal notice to the holders of the record title of the possessor's adverse claim to the land, and that plaintiff had acquired title by adverse possession.

5. Where, in ejectment, defendant claimed title to the land by adverse possession, declarations made by defendant's predecessor in title, not in the presence of the owner of the record title, that he had bought the land from such owner, or that the latter had given it to him, was inadmissible as self-serving.

6. Under Rev. St. 1899, § 865, prohibiting a reversal for immaterial errors, where, in ejectment, defendant was clearly entitled to recover, a judgment in his favor could not be reversed on appeal for the erroneous admission of certain evidence.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Thomas H. Swope and others against Mary Ward and another. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Beardsley, Gregory & Kirshner, for appellants. Ralph S. Latshaw, for respondents.

MARSHALL, J.

This is an action in ejectment to recover lots 10, 11, 12, and 13 in block No. 80 in East Kansas, an addition to Kansas City. The petition is in the usual form, and the ouster is laid as of January 2, 1895. The answer is a general denial. There was a verdict and judgment for the defendants, and the plaintiffs appealed.

The plaintiffs showed a record title from the United States government through mesne conveyances to them, and that the defendants are in possession, and then rested. The defendants claim title by limitation. The defendants called some 25 witnesses, by whom it was shown that from some time prior to 1867 until 1887 the land was owned by the Campbell family. In 1867 the land was of very small value, and a man named Davis, who had a brickyard near by, entered upon and took possession of the land, without the consent or permission of the owner thereof, and erected upon it a one-story frame house, which he used for storing tools and for the convenience of his men. Davis sold to a man named Hooper, and about 1867 or 1868 Thomas E. Ward, the father of the defendants, bought from Hooper, and immediately entered into possession, and continued to occupy it as his residence from that time until his death, in 1896, and the defendants have continued in the possession ever since, claiming under him. At the time Ward purchased from Hooper, there was only the small frame house aforesaid on the land. Afterwards Ward built another one-story frame house, a stable, a chicken house, a coal shed, and put up a fence along the front of the property and partly along the west side, and also put up fences around the chicken yard and around the garden which he maintained on the place.

There is no room for question in the case that Ward entered into the possession without the leave or permission of the owner, and that his possession was actual, open, notorious, continuous, uninterrupted, exclusive, under a claim of ownership, and adverse. The plaintiffs try to differentiate between a claim of ownership of the house and ownership of the land, but the evidence of many witnesses is that he claimed to own the whole place, and that he made no distinction in his claim between the land and the house. For about 30 years Ward lived on the place, and raised a large family there, and claimed it as his home. The Campbells knew he was living there, and that they had never given him any permission to do so, nor had he ever asked their leave to do so. In fact, the elder Campbell is shown to have said he expected to have trouble with them. Yet they took no steps to oust him, and in fact never said a word to him, during the 19 or 20 years that they continued to have title to the property after Ward's possession began. It appears that no one paid any taxes on the property prior to 1888. Over the strenuous objection and exception of the plaintiffs the trial court permitted some twenty-odd witnesses to testify that Ward always claimed to own the land, and the ruling of the court in this regard and the instructions given as to such claim constitute the errors assigned in this court.

The plaintiffs, in rebuttal, introduced evidence tending to show that they purchased the land from the Campbells in about 1887 (the exact time is not clearly shown in the abstract of the record), and that they had paid the taxes, general and special, ever since. The plaintiffs also showed that in 1888 they had a suit between the plaintiff Swope herein and the ancestor of the other plaintiff, McElroy, about the land, in the United States Circuit Court at Kansas City, and that the deposition of Ward was taken in that case on December 3, 1888. The deposition was read in evidence in this case by the plaintiffs. In that deposition Ward testified that some time in the summer of 1887 the plaintiffs Swope and James E. McElroy, the said ancestor of the other plaintiff herein, came to the place, and asked him who lived there, and he told them that he did; that Swope said that McElroy had bought out the rest of the Campbell estate, and that "we bought this place, too"; that he told them that he had bought it in 1867, and that he concluded to live there while he lived; that Swope said, "We will put you out," and that he told them to "go ahead"; that they then said he would have to pay rent, but that he told them he would not. At any rate, Ward continued thereafter to live there, and to claim the place from that time (in the summer of 1887) until he died, in 1896, and neither the plaintiffs nor any one else took any steps or said or did anything else looking towards ousting him, or contesting his claim to the place, until this suit was commenced on March 7, 1898.

1. The plaintiffs have the record title to the land. The defendants claim title by limitation. The chief error assigned is as to the ruling of the trial court admitting testimony that the defendants' ancestor, during the time of his possession, which continued for about 30 years, claimed that he owned the land, and in the refusal of the court to instruct the jury to disregard those claims. The gravamen of the contention is that no notice of such claim was brought home to the plaintiffs. The trial court instructed the jury, at the request of the defendants, that if they believed and found from the evidence "that the defendants and those under whom they claim title have been in actual, adverse, open, notorious, and continued possession of the land in question, claiming to own the same, for a period of at least ten years before the commencement of this action, then the plaintiffs cannot recover, and your verdict must be for the defendants." The court, of its own motion, also instructed the jury as follows: "The evidence in this case shows the record title to the lots in controversy in the plaintiffs. Defendants claim that they are entitled to the lots in controversy by reason of adverse possession thereof. Before defendants can successfully maintain such claim, they must show to the satisfaction of the...