OPINION
Ray, C. J.
-- This
is an action of ejectment for 77.41 acres of land, being the
southeast fractional quarter of section 19, township 40,
range 5, east in Jefferson county, Missouri. This 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 objection has 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 ten 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 twelfth day of May, 1869, one
S. G. McKee received from the collector of this county a tax
deed for the southeast 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 southeast 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 southeast fractional quarter, nor did he pay
any taxes on any of it while he occupied it; that on the
sixteenth day of September, 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 to the within to D.
F. McKee, this tenth day of January, 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 of
the arbitration. After January 10, 1880, plaintiff continued
in possession of this land, and cultivated the small piece
cleared, claiming the whole of it, till the present time.
Before January 10, 1880, defendant went to an attorney and
exhibited his tax deed, dated in 1878, and the attorney
informed him that this deed did not convey the title, but
that it was color of title, and the only way he could get his
title perfected was to get possession and hold it for a
period long enough to get title by the statute of
limitations; and, in pursuance of this advice, the
arbitration between him and his brother took place. After
January 10, 1880, defendant claimed title to the land by
virtue of both tax deeds; that is, he testified he so
claimed, but there was no evidence that he stated, either
publicly or privately, under what deeds he claimed. Upon...
