Blair v. Smith

• Decision Date: 31 March 1852
• Citation: 16 Mo. 273
• Parties: BLAIR, GUARDIAN OF THE HEIRS OF MAGENIS, Plaintiff in Error, v. SMITH, Defendant in Error.
• Court: Missouri Supreme Court

16 Mo. 273

BLAIR, GUARDIAN OF THE HEIRS OF MAGENIS, Plaintiff in Error,

v.SMITH, Defendant in Error.

Supreme Court of Missouri.

March Term, 1852.

1. The acceptance of a deed is not such a recognition of the title of the vendor as to estop the vendee from availing himself of a possession adverse to that title, under the statute of limitations.

2. Adverse possession for twenty years confers upon the possessor an absolute title against all persons not excepted by our statute of limitations.

3. Where the owners of contiguous lots mutually establish a boundary line and build up to it, and use and occupy according to it, for a period long enough to show their agreement and acquiescence, although less than the period which would be a bar under the statute of limitations, they, and those claiming under them, will be estopped from afterwards claiming a different boundary. Taylor & Mason v. Zepp, 14 Mo. affirmed.

4. This principle is not in contravention of the statute of frauds.

Error to St. Louis Circuit Court.

This was ejectment for a small strip of ground fronting on Front street, in St. Louis, described in the petition as being two feet seven inches in width on Front street, against Smith, a tenant of John H. Gay, brought in November, 1840. The answer sets up the statute of limitations, and, also, that the division line had been agreed upon and possession had according to it, for a long time, by the owners of the contiguous lots, and that the plaintiffs were bound by such agreement, possession, acquiescence, etc.

The facts appeared on the trial to be that Gay acquired, by deed from Sarpy and others, on the 18th of April, 1828, a lot of ground at the corner of Chestnut and Front streets, bounded south by Chestnut street. Gay immediately entered into possession, and commenced building a warehouse in the fall of 1828, which was finished in the summer of 1829, and was built on what he claimed to be the north line of his lot, which said lot was bounded north by the lot of A. L. Magenis. Gay held possession of the same up to the great fire of 1849, when said warehouse (stone warehouse) was consumed, and the same lot was leased to Smith, who commenced moving the old walls of said warehouse, and rebuilding on the same lines and covering the same ground occupied by the north wall of said warehouse. At the time of the purchase from Sarpy and others by Gay, there was, along the north boundary of their lot, a vacant space used as a private alley, and he, Gay, was informed by Sarpy that the same belonged to the owners of the lots on each side, and was at their disposal; and upon this information said warehouse was built, so as to take in half of said private alley. After said warehouse was built, Magenis laid claim to seven feet of the land, and in August, 1830, Gay purchased from Magenis, for $700, his right, and took a warranty deed of that date for seven feet, described in the deed as containing seven feet English measure in front by eighty feet same measure in depth, be the same more or less, etc., bounded east by Water street, south by lot of Gay, north by lot of Magenis, and west by alley.

In 1832 said Magenis, the ancestor of the plaintiffs, built a warehouse on his lot, and used the north wall of Gay for the south wall of his warehouse, and paid Gay therefor the sum of one hundred dollars. Magenis resided in St. Louis during all these transactions, till his death, in 1848, and during all that time Gay held the uninterrupted and peaceable possession of his said warehouse and lot, claiming the same; and such possession was continued till the commencement of the suit.

The land claimed is twenty-three inches, being the difference between thirty-one feet French, and thirty-one feet English measure. Magenis also occupied his building all that time.

The court gave and refused instructions based upon the principles that the statute of limitations was a bar to the action, and, secondly, that if the owners of the adjacent lots agreed upon a division and boundary line, separating the two lots, and built respectively upon said line, and occupied accordingly from thence down to Magenis' death, in 1848, each up to his line, then, that the parties are bound by said line, and all claiming under them; and, thirdly, that the acceptance of the deed of Magenis by Gay, in 1832, does not estop Gay from setting up a previous possession against Magenis and his representatives, under the statute of limitations.

The court, sitting as a jury, found a verdict for defendant.

M. & F. P. Blair, for plaintiffs in error.

1. As to limitations, the plaintiffs insist that the record shows that the possession of the defendant's lessor was not adverse for twenty years prior to this suit.

2. As to the fixing of boundaries, the plaintiffs insist that there is no evidence whatever to show it; and especially no acts of a character to operate as an estoppel to claim the true boundaries. 3 Hill, 219; Taylor & Mason v. Zepp, 14 Mo. Rep.; Rockwell v. Adams, 16 Wendell, opinion of Senator Maison.

Spalding & Shepley, for defendant in error.

I. The adverse possession of Gay, and those holding under him, is an effectual bar to the plaintiffs' action. 13 Mo. Rep. 335, Biddle v. Mellon; Angell on Limitations, chap. 31, sections 14-19; 1 Watts, 433; 5 Serg. & Rawl. 236; 2 Har. & J. 87; 1 Bibb, 582; 2 Bibb, 506; 4 Bibb, 100; 4 Monroe, 138; 8 Peters, 41; 9 Mo. Rep. 477.

II. Purchasing out and taking deed from Magenis of the seven feet is no admission of Magenis' right to the ground now under dispute, so as to prevent the defendant from setting up the bar of the statute of limitations. 12 Mo. Rep. 238, Landes v. Perkins. A person in possession, claiming title, may purchase in an outstanding title, and is not thereby deprived of the benefit of his previous adverse possession; nor is he thereby estopped from denying the validity of the title so purchased. 9 Mo. Rep. p. 477, Macklot v. Dubreuil; 11 Mo. Rep. 118, Jockel v. Easton; 11 Mo. Rep. 149, Page v. Hill. These cases establish the doctrine that the vendee is not estopped from denying his vendor's title.

III. The plaintiffs are estopped in this case. It is a question as to boundary. They now claim between one and two feet which their ancestor had not claimed, but which, on the contrary, had for the greater part of twenty years been covered by Gay's stone wall, forming the north side of his warehouse, while he himself had occupied the adjacent lot up to that wall, and had purchased the right of Gay to use and build against it. The wall formed the south side of Magenis' warehouse. 6 Wend. 467; 4 Wheat. 513; 10 Wend. 104; 12 Wend. 127; 13 Wend. 536; 4 Johns. 202; 2 Caines, 197; 1 Binney, 215; Barr, 234; 1 Yerger, 116, 496; 1 Meigs, 63, 413; 4 Yerger, 456; 8 Yerger, 398; 4 Metcalf, 438; 9 N. H. 473. These cases sustain the principle that if neighboring proprietors fix on a boundary line and act accordingly, and possess according to it, especially if they get the line run by a surveyor and agree upon it, it is an estoppel, and they are both bound by it, and possession according to a line is evidence of an agreement establishing it.

The case of Taylor & Mason v. Zepp & Zepp, decided at the last March term, is exactly in point.

RYLAND, Judge, delivered the opinion of the court.

From the above statement it will be seen that this case comes fully within the principles and rules settled by this court in the case of Taylor & Mason v. Zepp & Zepp, 14 Mo. Rep. 482.

Here were proprietors of contiguous lots. One built a warehouse in 1828 and 1829, more than twenty years before the suit was commenced. After putting up the warehouse, the other proprietor claimed that the warehouse had been built upon his ground. It seems that there was a private alley between the lot purchased by Gay of Sarpy and others, and the lot of Magenis. This alley, Gay was informed, was for the benefit of, and belonged to, the owners of these two lots--his lot and Magenis' lot. Gay then commenced his warehouse so as to take his part of this alley; the north wall of the warehouse he supposed to be on his line. After the warehouse had been erected, Magenis complained that Gay had overreached on him, and that his warehouse was, in part, on his lot. Gay then bought of Magenis a strip of land on the north of Gay's lot, seven feet wide, and eighty feet in length, running from Front street back to the alley, now Commercial alley. For this strip of land Gay paid Magenis $700, and took a deed from Magenis, with covenants of general warranty. Magenis afterwards erected a warehouse joining the warehouse of Gay, and used Gay's north wall of his warehouse in common. For the use of this wall, Magenis paid Gay $100. Gay, and those under him, had been in possession from the purchase in 1828. He purchased the seven feet from Magenis in 1830. Gay remained in possession up to the big fire in 1849, when this warehouse was burned. Gay then leased the lot to Smith, the defendant, who commenced building on the site of the old wall, between Gay and Magenis. The plaintiffs are heirs of Magenis; their ancestor resided in St. Louis from the time of the building of the warehouse until his death in 1848, never claimed any part of the lot from Gay, and used with Gay, in common, the wall of the warehouse as his southern boundary, and Gay used it as his northern boundary. It was supposed, at the time of the purchase by Gay from Magenis, that the wall on the north side of the warehouse was the line. The lot was sold, as having that line of boundary for Magenis' south and Gay's north line. The plaintiffs claim twenty-two inches in width, running the entire length back, being eighty feet. The plaintiffs now allege that this strip of land was never embraced in Magenis' deed to Gay, and that they were entitled to it. The suit was commenced November 2d, 1849. Gay bought the seven feet of Magenis, in August, 1830.

The plaintiffs asked the court to declare as follows: “As Gay accepted the deed from...