Appeal from circuit court, Jefferson county; JOHN L. THOMAS, Judge.
RAY, C. J.
This is an action of ejectment for 77.41 acres of land, being the S.E. fractional ¼ of section 19, township 40, range 5 east, in Jefferson county, Mo. The suit was begun August 20, 1885, and tried
by the court without a jury at the May term, 1886. The petition is in the common form, and the answer a general denial. Plaintiff had judgment upon the trial, and defendant has appealed. Plaintiff is the owner of the patent title, which seems to be regular and sufficient to pass the title, and is so found by the trial court, and as to which no objections have been suggested in the brief of counsel in this court. The case here turns upon the title of defendant, who claims under the statute of limitations and to have had the actual adverse, open, continuous, notorious possession for more than 10 years prior to the institution of this suit under claim and color of title. The court, at the close of the evidence, made a finding of the facts, and gave a declaration of law, which, omitting the portion applicable to plaintiff's title as now immaterial, is as follows: "The court also finds from the evidence that on the 12th day of May, 1869, one S. G. McKee received from the collector of this county a tax-deed for the south-east fractional quarter of section 19, township 40, range 5 east, containing 41.16 acres; that this deed did not convey to said McKee the legal title to this land, but was duly recorded, and operated as color of title; but that in 1871 or 1872 the said S. G. McKee took possession of this land, and cleared and fenced three or four acres on the west end of it; that he possessed and cultivated this piece he had cleared from the time he cleared and fenced it till January 10, 1880, claiming to own the west half of the south-east fractional quarter, section 19, township 40, range 5 east, containing 41.16 acres; that he did not claim to own the title to the east half of this tract of land, he supposing all the time that his tax-deed did not cover the east half of the south-east fractional quarter, nor did he pay any taxes on any of it while he occupied it; that on the 16th day of Sept., 1878, the defendant received a tax-deed from the collector of said county for this land, but such deed was ineffectual to convey the legal title to him, but was duly recorded and operated as color of title; that when he got this deed he asserted title to the land, and demanded of S. G. McKee the possession of it; but S. G. McKee, also claiming title, refused to deliver possession to him; that thereupon the two met, [being brothers,] and selected two men to arbitrate the dispute between them, they agreeing that they would abide by their decision. The arbitrators met on January 10, 1880, and, after hearing the parties and examining their deeds, determined the matter in favor of the plaintiff, and decided that he had the better title. It was also agreed between these parties that if plaintiff should be found to be entitled to the land, the same arbitrators should determine how much plaintiff should pay S. G. McKee for any valuable and lasting improvements he may have made on the land, but after the arbitrators decided that plaintiff was entitled to the land, he offered to pay S. G. McKee twenty-five dollars for his improvements, which the latter accepted, and thereupon the latter, on January 10, 1880, indorsed on the back of his tax-deed the following: `I, S. G. McKee, relinquish my title the within to D. F. McKee this 10th day of Jan., 1880.' He did not sign this memorandum, but wrote it himself, and then delivered this tax-deed, thus indorsed, together with the land, over to defendant. This was all done in pursuance to the arbitration. After January 10, 1880, plaintiff continued in possession of this land,...
