Biddle v. Mellon

• Decision Date: 31 March 1850
• Parties: JOHN BIDDLE v. THOMAS MELLON.
• Court: Missouri Supreme Court

13 Mo. 335

JOHN BIDDLE

v.THOMAS MELLON.

Supreme Court of Missouri.

March Term, 1850.

ERROR TO ST. LOUIS CIRCUIT COURT.

This was an action of ejectment. The plaintiff below declared for about fourteen feet of ground lying on the east side of Main street, in St. Louis, “bounded on the south by the southern line of Clamorgan's survey,” and north by a lot formerly of James McGunnegle, deceased. He gave evidence that he had been in possession of said land from 1825 to 1847; and there was also evidence tending to show that the northern line of his possession had been fixed and established during the life-time of James McGunnegle prior to 1825, and that ever since that time his possession had been co-extensive with that line. Plaintiff also read in evidence several deeds from McKnight & Brady, and subsequent grantees, conveying to him the lot lying on the east side of Main street, and bounded on the north by the lot of James McGunnegle. It was admitted that defendant below was in possession of the premises in controversy at the commencement of the suit.

The plaintiff in error (defendant below), gave in evidence a survey of the lot confirmed to Clamorgan, and showed that the southern part thereof, fronting westwardly sixty feet on Main street, and bounded south by the southern boundary or line of Clamorgan's survey, was conveyed by McKnight & Brady to Moses Bates, and by intermediate conveyances rested in defendant below--the confirmation to Clamorgan and the derivative title of plaintiff in error are shown by the record, the southern line of Clamorgan's survey being the southern boundary of the lot of plaintiff in error. That in 1847, plaintiff in error commenced against the tenant of Mellon an action of ejectment, to recover the very lot of ground described in the declaration filed in this cause. That said tenant was served with process, and gave notice thereof to Mellon, who, however, did not defend the action, but judgment by default was taken therein and perfected against the tenant, and Biddle entered into possession of said premises by virtue of said judgment, and continued possessed thereof at the commencement of this suit.

So that the case is shortly thus plaintiff shows that he and those under whom he claims had been in adverse possession of the land in controversy for more than twenty years next preceding the month of July, 1847.

Defendant shows himself to be clothed with the documentary title to the premises, regularly derived from the confirmee thereof, and that he recovered possession of the premises by a judgment in ejectment commenced in 1847, against the tenant of plaintiff, plaintiff having notice of the action, and that he was at the time this suit was commenced so possessed thereof.

At the instance of the plaintiff the court instructed the jury as follows: 1st. If the jury believe from the evidence that Thos. McKnight, claiming to be the owner of the lot in dispute, and James McGunnegle, claiming to own the lot north of the one in dispute, fixed upon the present division line between said two lots, as far back as 1822, as the correct line of division between said lots, and that said McKnight, with the knowledge of said McGunnegle, built the stone house on said lot, the north wall running along said line, and inclosed his lot in continuation of said line, and with the acquiescence of said McGunnegle, and the subsequent owners of said lot occupied said lot of McKnight down to the year 1847 or 1848, then said line, as then fixed, must be taken as the true line of division between said lots, and the defendant cannot at this late day dispute the correctness of the location of said line against any one claiming under Thomas McKnight. 2nd. After fixing the boundary between adjoining lots by the owners thereof, and quiet occupancy of said lots, according to such boundary or division, for the space of twenty-five years, neither proprietor can object to the location of such division line, but the same is to be taken as correctly located. And of its own motion the court instructed the jury as follows: 1st. He who takes and maintains the possession of land, always claiming it as his own, and exercising such acts of dominion as indicate that they are done in the character of owner alone holds adversely to all others such a possession, if full, actual, and notorious and uninterrupted, and continued for the period of twenty years, confers a positive title. If, therefore, the jury shall believe from the evidence that the plaintiff and those through whom he claims had such a possession of the land in the declaration mentioned for the space of twenty years, consecutively, up to the time of the entry of the defendant, under the judgment recovered against the tenant of the plaintiff, they will find for the plaintiff, notwithstanding the defendant's entry and continued possession under and by virtue of the said recovery.

To the giving of which instructions, defendant excepted at the time. The defendant then asked the following instructions (which the court refused and defendant excepted to the refusal), viz: 1st. The jury is instructed that although a prior possession under a claim of title, and not voluntarily abandoned will prevail in ejectment over a subsequent entry without any lawful right: yet where the subsequent entry and possession of the defendant are acquired by virtue of a recovery in ejectment they afford a better presumption of title than the prior possession; and if the defendant thus in possession by virtue of the recovery in ejectment produce and show himself to be clothed with the legal title to the premises the plaintiff relying on mere possession prior to the ejectment, cannot prevail against him. 2nd. If a party clothed with the legal documentary title to land be in possession thereof under a judgment and execution of a court of competent jurisdiction in ejectment, he can defend that possession against any one clothed with the new title by possession for twenty-two years prior to the inception of the ejectment suit and whose tenant was ejected in that suit.

The verdict being against defendant he filed a motion for a new trial, assigning as a reason therefor: the error committed by the court in giving and refusing the instructions asked for at the trial, which motion the court over ruled and defendant excepted.

GANTT, for Plaintiff. Upon the case as stated the plaintiff in error, by his attorney, insists: 1st. That the person clothed with the true paper title to land may, in ejectment, defend the possession thereof against the world. 2nd. That if the person clothed with the documentary title, recover by ejectment the possession of the land which has theretofore been held adversely to him, he may defend that possession although such adverse possession may have continued twenty years prior to the institution of proceedings in ejectment against whomsoever. 3rd. The right of property is shown to be in Biddle. The right of possession is what he recovered in the ejectment, together with the possession itself; and he was therefore invested with the “juris and sisnac conjunctio,” which constitutes a perfect title to lands. 4 Har. & McH. 123.4th. The person who has been in adverse possession of lands for 20 years can hold them as defendant against the real owners, but unless such adverse holder be clothed with the possession itself, his prior possession shall not avail against the owner in possession, such possession being taken according to law. 5th. By virtue of the act of limitations, no positive right or title is acquired by one party, but only the remedy for the recovery of the lands is taken away from him who hath the true bill. But if he who had the true bill be in possession, he needs no remedy to recover that which he has already, to wit: the possession; and if he had also the title justa causd possidendi, he cannot be dispossessed. In support of which propositions he cites the following authorities: 3 Cruise's Digest, 490, 491; 16 Johns. 314, Jackson v. Rightmyre; 7 Cowen, 737, 642, Jackson v. Walker; 6 Cowen, 764, Jackson v. Miller; Blacks. 678, Davenport v. Tyrrell; 2 Blacks. Com. 198, 199; 5 Cowen, 200, Jackson v. Dean; Ridgely's Lessee v. Ogle, 4 Har. & McH. 123.

DICK, for Defendant. In 3 Cruise's Digest, p. 495, § 21. it is said: “An uninterrupted possession for twenty years, not only gives a right of possession which cannot be divested by entry, but also gives a right of entry. So that if a person who has such a possession is turned out of it, he may lawfully enter and bring an ejectment for its recovery, upon which he will be entitled to judgment. Thus a possession for twenty years in this case forms a positive prescription.” In the same volume at p. 506, and in Atkyns v. Horde, Burrows, 119, Lord Mansfield, in giving the opinion of the court, says: “An ejectment is a possessory remedy, and only competent where the lessor of the plaintiff may enter; therefore it is always necessary...