Bradley v. West

• Decision Date: 31 May 1875
• Citation: 60 Mo. 33
• Parties: WILLIAM BRADLEY, Respondent v. CHARLES WEST, Appellant.
• Court: Missouri Supreme Court

60 Mo. 33

WILLIAM BRADLEY, Respondent

v.CHARLES WEST, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Carroll Circuit Court.

L. H. Waters, for Appellant.

I. The deed from Horton to Bradley should have been excluded. It was acknowledged more than eight years after date, and the certificate fails to show that the justice acted in his own or in any town. (Carpenter vs. Dexter, 8 Wall., 513; Merchants Bank, etc. vs. Harrison 39 Mo., 433.)

II. The court erred in giving plaintiff's fifth instruction. This is not a case of mixed possession. Defendant, by his entry under claim of right and color of title, acquired seizin co-extensive with the premises covered by his deed. (Wagn. Stat., 917, § 5; Tyl. Ej., 904.) And if, after his entry, plaintiff took possession of any part of the land so entered upon, defendant was disseized only to the extent of the part actually so occupied. (Schultz vs. Lindell, 30 Mo., 310; Jackson, vs. Vermilyea, 6 Cow., 677.) In McDonald vs. Schneider, (27 Mo., 405) the true owner had the prior possession, and the defendant intruded thereon. The case of Griffith vs. Schwenderman, (27 Mo., 412) upon which the plaintiff relied in the court below, will not sustain this instruction. That case was substantially overruled in Crispin vs. Hannavan (50 Mo., 545).

III. This suit being to recover military bounty land, should have been begun within two years after the right of action accrued. (Wagn. Stat., 915, § 1.) This right accrued when defendant's possession became adverse. (Tyl. Ej., 927.) Hence, plaintiff's action is barred. (Totten vs. James, 55 Mo., 494.)

An entry made as a claim, to avoid the statute of limitations, must be while there is an existing right of possession, otherwise the right of entry is gone. (3 Cr. Dig. Tit., 31, ch. 2, §§ 16, 19, 21, 37; 2 Hill. Real Pr., 170, § 11; 156, § 7; 2 Sm. Lead. Cas., 592; 2 Greenl. Ev., § 545, note 3; Till. Ad. Ej., 100.) When the action of ejectment is barred, the right of entry is tolled. (Tyl. Ej., 70; Smith vs. Lorillard, 10 Johns., 356; Jackson vs. Wheat, 13 Johns., 43; Pillow vs. Roberts, 13 How., 472; Parish vs. Stephens, 3 Serg. & R., 298; Waln vs. Shearman, 8 Serg. & R., 357; Cranmer vs. Hall, 4 Watts & S., 36; Bigler vs. Karns, 4 Watts & S., 137; Bayard vs. Inglis, 5 Watts & S., 465; Blackw. Tax Tit., 661-2.)

M. T. C. Williams, for Respondent.

I. The acknowledgment was in form. (2 Seld. 422; Thurman vs. Cameron, 24 Wend., 87; 5 Smith, [N. Y.] 279; 1 Wend., 406; 1 Comst., 77; 41 N. Y., 402; 20 Ill., 402.)

II. The fifth instruction given by the court for plaintiff is proper. Actual occupancy by the rightful owner of part of the land, is constructive possession of the whole, unless he is disseized by actual occupation. (Hall vs. Powell, 4 Serg. & R., 465; Schultz vs. Lindell, 30 Mo., 317; Cottle vs. Snyder, 10 Mo., 770; McDonald vs. Snyder, 27 Mo., 405; Johnson vs. Prewitt, 32 Mo., 553; Crispin vs. Hannavan, 50 Mo., 545; Ang. Lim., § 410; Ad. Ej., 4 ed., 55-6, and cases cited.)

III. The eighth instruction given for plaintiff is correct law.

The effect of an entry on land by the legal owner animo clamandi, is to restore to him the seizin and possession. (3 Bl. Com., 175; 1 Salk., 246; Altemas vs. Campbell, 9 Watts, 28; 2 Cr. Dig., 501; Robinson vs. Sweet, 2 Greenl. Rep., 316; Ang. Lim., § 378; Holtzapple vs. Phillibaum, 4 Wash. C. C., 356.)

Such entry will avoid the statute of limitations. (Gree vs. Rolle & Newell, 1 Ld. Raym., 716; Hayward vs. Kinsey, 12 Mod., 573; Ford vs. Grey, 1 Salk., 286; S. C., 6 Mod., 44; Goodright vs. Carter, Dougl., 486; Bull. N. P., 102, A.; Vin. Abr. Tit., “Entry”; Com. Dig. Tit., “Claim;” Bac. Abr. Tit. “Limitations;” Ti. Ad. Ej. C., 4, p. 103.)

The Pennsylvania statute of 1785, of which ours is a copy, has been repeatedly construed, and under the decisions relating thereto, an entry has always been held to avoid the statute. (Altemas vs. Campbell, supra; Altemus vs. Long, 4 Barr, 254; Hinman vs. Cranmer, 9 Barr, 40; Ingersoll vs. Lewis, 1 Jones, 212; Miller vs. Shaw, 7 Serg. & R., 129; Hood vs. Hood, 1 Casey, 417; Hoopes vs. Garver, 3 Harris, 517; Carlisle vs. Stitler, 1 Penn., 8; Holtzapple vs. Phillibaum, supra; McCombs vs. Rowan, 59 Penn. St., 418; Douglas vs. Lucas, 63 Penn. St., 12.) And by the act of April, 1859, (1 Pamph. Laws, 603) the provisions of 4 Anne, similar to the 2nd section of our Limitation act, requiring suit to be brought within one year after entry, are made a part of the limitation Laws of that State.

Appellant may claim, however, that the statute only applies where there has been an actual ouster or disseizin in the strict common law sense of the term, by an intruder or wrong doer, and not where one takes possession of vacant land under claim and color of title.

WAGNER, Judge, delivered the opinion of the court.

This was an action of ejectment to recover a quarter section of land within the military bounty tract.

The plaintiff proved title by a regular chain from the patentee of the government, and the defendant relied on the statute of limitations.

On the trial the plaintiff introduced evidence tending to show that on the morning of the 26th of April, 1869, he went on the land in company with another person for the purpose of leasing the same to him; that he went around it and found the corners, and stepped off forty acres and threw up at the corners small mounds. He did not succeed in consummating the lease, and whilst he was on the land, defendant and his teams came upon it and were ordered off by plaintiff. He told defendant that he owned the land and was there to take possession and forbid the defendant doing any work upon it.

Defendant claimed that his lessor, one Lombard, owned the land and forbade plaintiff improving it. Defendant's teams went to work plowing on the lands and some of his hands built a rail pen on one side of it. Plaintiff then had some plowing done on another piece of the land and employed an agent to attend to it for him, and left for his home in New York. On the 22nd day of June, 1871, he returned and entered upon the land. He found that defendant had ten or twelve acres inclosed on the east side, and that his hired men were plowing about four acres outside of the enclosure and adjoining it. He ordered them off and told them that he owned the land. Defendant's improvements were on the east side of the tract, and plaintiff's were on the west side.

Defendant read in evidence as color of title a deed from one Turner to Lombard for the land in question dated April 16th, 1869, for the consideration as therein stated, of one hundred and fifty dollars. He then gave evidence in reference to his possession.

The cause was tried before the court sitting as a jury, and a judgment was given for the plaintiff.

The court gave four charges or requests for the plaintiff which will be noticed.

The one numbered four in the series, declared that “the plaintiff having the legal title, the legal seizin and possession followed the title; and that the defendant setting up an adverse possession against such legal seizin and possession, must show, by evidence satisfactory to the court, that he, or those under whom he claims, have had a visible, notorious and continuous adverse possession of the land in controversy, under claim of right, and color of title thereto, during the period limited by the statute of limitations, before the commencement of this suit, otherwise the statute of limitations is no bar or defence against such legal seizin and possession.”

The fifth request was that “if the court find from the evidence, that the plaintiff by himself, his agent or tenant, was in the actual possession of a part of the premises in controversy, as the legal owner of the same, within and during the time limited for the commencement of this suit, then the plaintiff had the legal possession of the whole of said premises, and could only be dispossessed thereof by actual ouster; that the defendant having entered upon said premises, not having the legal title thereto, and occupied and cultivated a part of the same could only have possession of the part, so actually occupied and cultivated by him; that this adverse possession is to be taken strictly, and could not be made out by inference, but only by clear and positive proof; that it devolves upon the defendant to show by evidence satisfactory to the court, the character and extent of his actual possession; that such actual possession must have been open and uninterrupted, peaceable and continuous, for the whole time, next before the commencement of this action, limited by the statute of limitations, and that the plaintiff is entitled to recover all that part of the tract in controversy not so actually occupied by the defendant during the whole time limited by the statute of limitations prior to the commencement of this suit.”

The sixth request declares that “to constitute adverse possession, so as to bar a recovery by the rightful owner, the party setting up such possession, must, in making his entry upon the land, and in acquiring such possession, act in good faith, under claim of right and color of the title thereto; and if the court find from the evidence, that the defendant knew when he entered upon the land that he had no legal title thereto, but knew it to be Bradley's land, and knew that the plaintiff was in the neighborhood for the purpose of taking possession and looking after the land; that when the defendant made his entry he found the plaintiff upon the land, claiming ownership and asserting title; that he did his plowing and built his rail pen for the purpose of preventing plaintiff from taking or acquiring possession of the premises, knowing him to be the rightful owner, then such possession, so acquired, will not serve the purpose of a foundation for an adverse possession, so as to bar the right of this plaintiff to recover.”

The eighth declaration was that “if the court find from the evidence, that the plaintiff in...