Barry v. Otto

• Decision Date: 31 March 1874
• Citation: 56 Mo. 177
• Parties: JAMES G. BARRY, Respondent, v. PROSPER OTTO, et al., Appellants.
• Court: Missouri Supreme Court

56 Mo. 177

JAMES G. BARRY, Respondent,

v.PROSPER OTTO, et al., Appellants.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

S. Simmons, for Appellants.

I. The court is bound to know judicially that the legal title to the land in question is in the United States and there remains until it is divested by patent or grant. (3 Washb. Real Prop., 168; Carman vs. Johnson, 20 Mo., 108; Gibson vs. Chouteau, 13 Wall., 93.)

II. The rule of the common law that the defendant in an action of ejectment may show an outstanding title in a third person to defeat the suit of plaintiff, is not changed by the statute. (Gurno vs. Janis, 6 Mo., 330; Keene vs. Barnes, 29 Mo., 377; Forder vs. Davis, 38 Mo., 107; Foster vs. Evans, 51 Mo., 39; Wagn. Stat. title “Ejectment” with foot notes.)

Krum & Patrick, for Respondent.

ADAMS, Judge, delivered the opinion of the court.

This was an action of ejectment for a lot in the city of St. Louis. The plaintiff and defendants claimed to be owners respectively of two adjoining lots, and the contest was as to the boundary line between their lots. The ground in dispute was a strip of ten or eleven inches wide by the length of the lots one hundred and twenty-seven and a half feet. Both parties introduced deeds of conveyance for the purpose of showing the boundaries of their respective lots from the same original grantor. The plaintiff claimed title to the locus in quo by adverse possession for more than ten years before the entry and ouster by defendants, and the material question was whether his possession was really an adverse possession, or whether it was taken and maintained by accident or mistake.

Each party gave evidence conducing to prove their respective theories. The plaintiff's evidence showed that he had held possession up to the line claimed by him for thirty years, partly by means of a house built on the line, and by a fence extending from the house along the remainder of the line. He held this possession up to 1869, when the defendants entered upon and took possession of the strip of land in dispute as belonging to their lot.

The court instructed the jury on the questions of adverse possession and possession by mistake as raised by the evidence. These instructions presented the material issues fairly to the jury, and no serious objections are raised to them here.

But the defendants asked the court to instruct the jury that the deeds read in evidence by the plaintiff showed no title in him; and also that upon the evidence given the plaintiff could not recover, because he had not proven that the United States had parted with their title. The court refused these instructions. A verdict and judgment were rendered for plaintiff; the General Term affirmed the judgment, and defendants have appealed to this court.

I. The plaintiff relied on adverse possession for more than ten consecutive years...