Allen v. Mansfield
| Decision Date | 08 February 1892 |
| Citation | 18 S.W. 901,108 Mo. 343 |
| Parties | Allen, Appellant, v. Mansfield |
| Court | Missouri Supreme Court |
October, 1891
Appeal from Buchanan Circuit Court. -- Hon. O. M. Spencer, Judge.
Reversed and remanded.
B. R Vineyard for appellant.
(1) The former suit (82 Mo. 688) is no bar to this one even if the same title and defense were involved. Kimmel v Benna, 70 Mo. 52; Ekey v. Inge, 87 Mo. 493; Avery v. Fitzgerald, 94 Mo. 210. (2) Adverse possession (not actual) must be based upon both color and claim of title. Bakewell v. McKee, 101 Mo. 342; Avery v. Adams, 69 Mo. 603; Norfleet v. Hutchins, 68 Mo. 597; Hamilton v. Boggess, 63 Mo. 244; Cooper v. Ord, 60 Mo. 431. (3) The court erred in excluding the evidence of receipts for taxes paid by Allen G. Mansfield's executor. Gaines v. Saunders, 87 Mo. 557; Turner v. Hall, 60 Mo. 271; Anderson v. Scott, 94 Mo. 645; Fairfield v. Barbour, 51 Mich. 57. (4) To divest the owner of title to his land by parol gift the evidence should be so strong and convincing as to leave no room for doubt. "Loose declarations and admissions," made by the deceased shortly before his death, are "entirely insufficient." Berry v. Hartzell, 91 Mo. 136, and cases cited; Burdett v. May, 100 Mo. 13; Philpot v. Penn, 91 Mo. 38; Hughes v. Walker, 12 Pa. St. 173; Sitton v. Shipp, 65 Mo. 297. And, if the testimony is not strong enough to justify a court of equity in decreeing specific performance, it is not sufficient to sustain title in a suit at law. Walsh v. McIntyre, 68 Md. 302. (5) "Estoppel in pais is as efficient as a deed." 3 Wash. on Real Prop. 77; Kanaga v. Railroad, 76 Mo. 207, qualified in 84 Mo. 326-7, only so far as it applies to the land of a married woman; Evans v. Snyder, 64 Mo. 516; Kelley v. Hurt, 74 Mo. 567; Baker v. Railroad, 57 Mo. 265; Hubbard v. Railroad, 63 Mo. 68. (6) An estoppel in pais may be invoked in a proceeding at law, and will support title in him in whose favor it has operated to maintain ejectment. Doe v. Rosser, 3 East. 15; Brown v. Wheeler, 17 Conn. 353; Dickerson v. Colgrove, 100 U.S. 578; Barnard v. Seminary, 49 Mich. 444; Rangely v. Spring, 21 Me. 137; Stearns v. McNamara, 36 Me. 178; Spears v. Walker, 1 Head (Tenn.) 166; 2 Herman on Estoppel, sec. 737.
James F. Pitt for respondent.
Where a donee under a parol gift takes possession of a part of a tract of land which has been surveyed and defined by stakes set by the donor, the possession will be of the whole tract under color of title, and adverse from its inception. Rannels v. Rannels, 52 Mo. 108; Bank v. Fife, 95 Mo. 118. Defendant's instructions declared the law, and plaintiff's sixth and seventh were properly refused. Allen v. Mansfield, 82 Mo. 688.
This is an action of ejectment for a lot in the city of St. Joseph. Plaintiff appealed from a judgment for defendant. Both parties claim under Allen G. Mansfield who died testate in the year 1867. In 1874 his widow, heirs and devisees executed a partition deed conveying the lot in question to William Mansfield whose title the plaintiff acquired by a sheriff's deed, dated June 13, 1877.
The defendant is a colored person, formerly the slave of Allen G. Mansfield. Her defense is an alleged parol gift of the lot to her by her former master, and the statute of limitations. The proof offered in support of this defense discloses these facts: In 1865, Mr. Mansfield built a small house or shanty on the east or alley end of the lot and then moved the defendant and her two children into it. She continued to reside there until the commencement of this suit in 1886. At the time he built the shanty he had the lot surveyed and staked off. And in the year of 1865 or 1866 built a fence around the entire lot at his own expense. Three or four years thereafter a large part of the fence was washed away. Thereafter some one, probably the defendant, reconstructed part of the fence from time to time so as to include the shanty and a part only of the lot in the inclosure. The evidence tends to show that she dug a well and planted some trees in the inclosed part, and that she, for a time at least, had a small pig pen on the uninclosed part. Four or five witnesses, some of them colored persons, testified to conversations with Mr. Mansfield in the year 1865, in which he is reported to have said that he was going to give the property to Malinda. Some of them on further examination say he said he gave Malinda the house and lot and a cow. One of these witnesses, a colored woman, testified that Malinda wanted to go to Iowa and Mr. Mansfield wanted her to remain at St. Joseph; that Mr. Mansfield sent his daughter for Malinda, then at another house in the city; that he then said in the presence of his daughter, the witness and Malinda that he would give her the lot if she would remain at St. Joseph. According to this witness the conversation was quite a formal affair; but the daughter testified that she knew of no such a conversation. The evidence of this daughter and that of another person is to the effect that Mr. Mansfield moved the defendant to the lot in question because she was not trustworthy about the house.
Plaintiff paid all of the taxes on the lot since his purchase in 1877. He offered to show that the Mansfield estate paid the taxes during the time the estate was in process of settlement, but this evidence the court excluded. The further evidence of plaintiff is, that he had the lot surveyed in 1878; that about that date he built a three-room house on the west one hundred feet and inclosed the whole lot with a new fence; that the west one hundred feet was then uninclosed, and that the old fence around the shanty included only thirty-five or forty feet of the east end of the lot; that he was at the premises nearly every day during the construction of the house and fence, and that the defendant made no objection and set up no claim of ownership. This evidence is corroborated by persons who built the house and stands undenied. Plaintiff says he saw defendant just after his purchase, and she then asked permission to remain on the lot, and he told her she could remain there until he desired to build.
At the request of the defendant the court gave the following instructions: "If the jury believe from the evidence that about the year 1865 Allen G. Mansfield had the premises described in plaintiff's petition surveyed, built a house thereon, and verbally gave the same to defendant and put her in possession thereof, and that defendant has ever since said date been so in possession of the whole or any part thereof, claiming to own the whole of said lot, and that said possession has been open, notorious and actual under claim of ownership, then the jury will find for defendant."
This instruction, it will be seen, directs a finding for the defendant as to the whole lot, though she may have had actual possession of only a part of it for the period of ten years. It proceeds upon the proposition that if Mansfield surveyed the lot, built a shanty upon it, verbally gave the lot to the defendant and put her in possession, then such facts constitute color of title; that under these circumstances possession of a part will draw to it constructive possession of the whole.
It is to be observed in the first place that there is no evidence of improvements made by the alleged donee or other circumstances to take the alleged parol gift out of the statute of frauds. As stated by counsel for the defendant it is title by adverse possession, not by gift, which will defeat the plaintiff. Continuous adverse possession under a parol gift for the statutory period will not only constitute a perfect defense, as against the donor and those claiming under him, but it will confer title upon the donee. Campbell v. Braden, 96 Pa. 388; Moore v. Webb, 41 Ky. 282, 2 B. Mon. (Ky.) 282; Outcalt v. Ludlow, 32 N.J.L. 239; Sumner v. Stevens, 6 Met. (Mass.) 337; Clark v. Gilbert, 39 Conn. 94. In all these cases there was actual possession of the entire property embraced in the parol gift, so that they do not dispose of the question in hand. To make possession of a part of a tract of land possession of the whole, there must be color of title to the whole, and the real question is whether the facts recited in the instruction constitute color of title.
In a case like this, where there is a claim of constructive possession flowing from actual possession of a part, it is necessary to bear in mind that claim of title and color of title are different things. Claim of title does not necessarily include color of title. The definitions and descriptions of color of title given in the books are various and conflicting. It is, we think, safe to say that any writing which purports to convey land and describes the same is color of title, though the writing is invalid, and conveys no title. Fugate v. Pierce, 49 Mo. 441; Hamilton v. Boggess, 63 Mo. 233; Hickman v. Link, 97 Mo. 482, 10 S.W. 600. In Fugate v. Pierce, it was said constructive possession is never based upon a claim merely; "there must be a deed purporting to convey the whole, or some proceeding or instrument giving color and defining boundaries, as well as actual possession." This doctrine was approved in Long v. Higginbotham, 56 Mo. 245. The claim must be "evidenced by some paper, or proceeding, or relation, that makes the claimant the apparent owner of the whole." Crispen v. Hannavan, 50 Mo. 536. These cases all lead to the conclusion that to constitute color of title there must be some documentary evidence, and so it is generally held. Sedg. & Wait on Trial of Land Titles [2 Ed.] secs. 769, 772.
There are some cases which appear to assert a different rule. In Rannels v. Rannels, 52 Mo. 108, the plaintiff purchased the land for his sister, but took...
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