Atchison v. Pease

• Decision Date: 20 December 1888
• Citation: 96 Mo. 566,10 S.W. 159
• Parties: ATCHISON v. PEASE.
• Court: Missouri Supreme Court

10 S.W. 159

96 Mo. 566

ATCHISON v. PEASE.

Supreme Court of Missouri.

December 20, 1888.

1. BOUNDARIES — SETTLEMENT BY AGREEMENT — STATUTE OF FRAUDS.

Where there is a dispute as to the true division line between adjoining proprietors, and they agree on a permanent boundary, and take possession accordingly, the agreement is binding on them, and those claiming under them, and such agreement is not within the statute of frauds. Following Jacobs v. Moseley, 4 S. W. Rep. 135.

2. LIMITATION OF ACTIONS — ADVERSE POSSESSION.

The fence having been moved by the owners to the line agreed upon, an action would be barred by a continuous adverse possession to that line for 10 years.

3. SAME — CONTINUITY OF POSSESSION.

A purchaser at a trust sale succeeds to the possession of the mortgagor, and the continuity of adverse possession is not broken because, after executing the deed of trust, the mortgagor conveyed to one who held for several years before the sale.

Appeal from circuit court, Andrain county; ELIJAH ROBINSON, Judge.

Ejectment by Jacob W Atchison against L. M. Pease. Plaintiff appeals.

W. B. McIntire, for appellant. W. O. Forrest and W. W. Fry, for respondent.

BLACK, J.

This is an action of ejectment to recover some eight acres of land off of the north side of a designated quarter of a quarter section. The plaintiff acquired the south 40-acre tract from W. G. Brown in 1882, who owned it as far back as 1870. A. D. Kellog owned the 40 acres on the north in 1870 and 1871. In 1870 he sold the land to Frank and Thomas Levitt, and gave them a bond for a deed, which they assigned back to Kellog in 1874. In February, 1871, Kellog conveyed to B. F Bergen, who on the same day made a deed of trust thereon to secure a debt therein described. B. F Bergen conveyed to C. H. Bergen in July, 1872. The property was sold under the deed of trust, in 1876, to Guthrie and Gentry, through whom the defendant acquired title. The evidence of Frank and Thomas Levitt is to the effect that there was a dispute between Brown and Kellog in 1870 as to the boundary line; that they refused to buy the land until this dispute was settled; that Brown, Kellog, and Frank Levitt went to the land, and then and there fixed and agreed upon a boundary line different from that where the fence was then located. Their evidence is that the fence was by them removed to this agreed line. This was done in 1870 or 1871. Other evidence shows that defendant, and those under whom he claims, have cultivated the north 40 up to this fence, from 1870 or 1871 to the trial of this cause. The adverse possession has been...