Bradley v. West

• Decision Date: 31 October 1878
• Citation: 68 Mo. 69
• Parties: BRADLEY v. WEST, Appellant.
• Court: Missouri Supreme Court

68 Mo. 69

BRADLEY

v.WEST, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Carroll Circuit Court.--HON. E. J. BROADDUS, Judge.

L. H. Waters for appellant.

1. Horton being dead, plaintiff, who was his grantee, was not competent to testify to the execution of the deed, nor to explain the erasures and interlineations. Poe v. Domic, 54 Mo. 119; Johnson v. Quarles, 46 Mo. 423. 2. This action was brought to recover the southeast quarter of section 15, 55 north, 23 west, on the 28th day of February, 1872, almost three years after defendant went into possession. The action for forcible entry, the court will see from the record, was commenced August 1st, 1871, for the twelve acres off of the east side of the same tract. The judgment in the latter case, in effect, is for a different tract of land. The forcible entry on plaintiff's possession was the foundation of his right to recover, while in the former case defendant's entry, forcible though it may have been, if with intent to claim the land, is the foundation of an adverse possession; and if the possession taken thereunder was continued in good faith for the statutory period, then plaintiff was barred. And the good faith goes to the intent to claim and possess the land. Bradley v. West, 60 Mo. 41; Wash b. Real Prop., 125. While the plaintiff, under the ruling of this court in Bradley v. West, 60 Mo. 59, might have recovered the whole tract in an action for forcible entry, yet, as he did not bring that action for the land in controversy, the forcible entry, will, as to this case, avail him nothing.

Botsford & Williams with Thomas J. Whiteman for respondent.

1. The plaintiff was competent to testify touching the execution of the deed. 2 Wag. Stat., § 1, p. 1372; Morse v. Low, 44 Vt. 561; Manufacturers' Bank v. Schofield, 39 Vt. 594; Looker v. Davis, 47 Mo. 145; Angell v. Hester, 64 Mo. 142; Isenhour v. Isenhour, 64 N. C. 640; Downs v. Belden, 46 Vt. 674. 2. The question of prior possession is conclusively settled by the record of the proceedings in the forcible entry and detainer case. The question necessarily and directly in issue in that action was whether respondent, the claimant therein, was in the actual and peaceable possession of the tract including the strip of twelve acres on the day of the alleged unlawful and forcible entry To recover in that action it was incumbent on the the complainant to show that he was in the actual and peaceable possession of the premises claimed, and that defendant entered upon that possession and ousted him. Bell v. Cowan, 34 Mo. 251; Beeler v. Cardwell, 29 Mo. 72; Prewitt v. Burnett, 46 Mo. 372; Bradley v. West, 60 Mo. 62. This record was admissible in the present suit, for the purpose of showing such adjudication. McKnight v. Taylor, 1 Mo. 282; Offutt v. John, 8 Mo. 124; Harvie v. Turner, 46 Mo. 444; Ridgley v. Stillwell, 27 Mo. 128; Strong v. Ins. Co., 62 Mo. 295; Wood v. Ensel, 63 Mo. 194; 2 Wharton Ev., § 758; Mitchell v. Davis, 23 Cal. 381; Stean v. Anderson, 4 Harring. (Del.) 215. The judgment of a court of competent jurisdiction, directly upon a particular point, is, between the parties, conclusive in relation to such point, though the purpose of such suits be different. Transportation Co. v. Traube, 59 Mo. 362; Spencer v. Dearth, 43 Vt. 98; White v. Coatsworth, 6 N. Y. 138; Freeman on Judgts., § 253.

HOUGH, J.

This was an action of ejectment instituted March 1st, 1872, to recover the possession of a part of the southeast quarter of section 15, township 55, range 23, the same being military bounty land in the county of Carroll. The cause was tried at the December term, 1875. The defendant relied upon adverse possession under color of title for the period of two years, under the special limitation law applicable to such lands. The plaintiff had judgment and the defendant has appealed.

1. FORMER RECOVERY OF A PART OF A TRACT, AS EVIDENCE OF RIGHT TO THE WHOLE.

It appears from the record that the plaintiff and the defendant each had actual possession in April, 1869, of a part of the tract in controversy; the plaintiff of a strip on the west side of said tract containing about eight acres, and the defendant of a strip on the east side thereof containing about twelve acres. The intervening portion of the tract remained unoccupied until the summer of 1871, when the defendant took actual possession of a part and subsequently of the whole thereof. On the 22d day of June, 1871, plaintiff brought an action of forcible entry and detainer against the defendant for the twelve acres occupied by him, and recovered judgment therefor, which judgment was affirmed by this court at its May term, 1875. 60 Mo. 59. A writ of restitution was issued on this judgment and the plaintiff was restored to the possession of said twelve acres on the 11th day of November, 1875. The only possession claimed by the defendant of the land lying between the eight acres on the west and the twelve acres on the east, prior to the summer of 1871, was a constructive possession thereof by reason of his alleged occupation of the twelve acres under color of title before the plaintiff, or any one for him, entered upon the western border of the tract. But the verdict of the jury in the forcible entry and detainer case is conclusive of the fact that the plaintiff entered upon the western border of the tract before defendant entered upon the eastern border, and that the latter's entry was a forcible intrusion upon the plaintiff's possession, and when restitution was made under the judgment in that case the statu quo was restored, and the defendant's possession of the twelve acres, became, from the beginning, the possession of the plaintiff and all constructive possession arising out of the actual possession, under color of title, was thereby extinguished. Ferguson v. Bartholomew, 67 Mo. 212. The only adverse possession, therefore, which the defendant could rely upon, was the possession taken by him in the summer of 1871, and that was less than two years before the institution of the present suit.

2. WITNESS, OTHER PARTY DEAD.

As to the deed from Horton to the plaintiff, we are of opinion that the plaintiff was a competent witness to prove that the grantor's name was in the body of the deed...