O'Brien v. Wagner

• Decision Date: 20 February 1888
• Citation: 7 S.W. 19,94 Mo. 93
• Parties: O'Brien et al. v. Wagner, Appellant
• Court: Missouri Supreme Court

7 S.W. 19

94 Mo. 93

O'Brien et al. v. Wagner, Appellant

Supreme Court of Missouri

February 20, 1888

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.

Affirmed.

M Kinealy and Jas. R. Kinealy for appellant.

(1) As Mrs. Fitzwilliam always retained possession of the lots, and there was no notice to Chamberlain that she held them as her own, there was no adverse possession, and no title was acquired by limitation; the notice must be actual notice. Jackson v. Benton, 1 Wend. 341; Swart v Service, 21 Wend. 36; Butler v. Phelps, 17 Wend. 642; Taylor on Landlord and Tenant, sec. 86, note 5. (2) There is no proof that defendant was in possession when suit was brought. (3) There was no forfeiture for breach of condition by Chamberlain, because not having been put in possession, the grantor could not have complied with the conditions. (4) There was no title acquired by forfeiture for breach of condition by Chamberlain, because no forfeiture was ever declared. 3 Wait's Actions and Defences, 70; Co. Litt. 214. (5) The first and second instructions refused to defendant should have been given. See cases cited above. (6) The last instruction refused to defendant ought to have been given. (7) The instruction given for plaintiffs is not the law and should have been refused.

W. F. Broadhead for respondents.

(1) Eliza Fitzwilliam, under whom the plaintiffs claim, having held the actual, open, notorious, continuous, exclusive, and adverse possession of the lot in question for more than ten years before the bringing of this suit, and after the period provided in her deed to Chamberlain for the performance of the condition therein provided, thereby acquired title, which descended to the plaintiffs upon her death. Macklatt v. Dubrueil, 9 Mo. side p. 490. It is not necessary, in this case, to show color of title, but if so, it was sufficiently shown, under the law as declared in Fugate v. Pierce, 49 Mo. 447, and Long v. Higginbotham, 56 Mo. 250, by the deeds of Brady and Watson to Eliza F., showing her former title, in connection with her deed to Chamberlain, with the proof of the breach of its condition, and of her claim of title, by words and acts of ownership. The fact that this point was not presented in the instruction asked in behalf of plaintiffs is immaterial. They are at liberty to recover upon any or all of the grounds which appear under the case made out, and on any title vested in them at the commencement of the suit. Public Schools v. Risley, 28 Mo. 418. (2) The condition contained in her deed to Chamberlain, that he should erect a substantial dwelling on or before July 1, 1866, under penalty of forfeiture of the estate conveyed, not having been performed, and the grantee having been in possession at the expiration of the period for its performance, and having thereafter continued in possession, exercising exclusive acts of ownership and possession until her death in 1883, she is presumed to have held for the purpose of enforcing the forfeiture, and it thereby became complete without any formal declaration; and, even if necessary, the institution of this suit by her heirs is equivalent to such declaration, in connection with the facts in evidence, as against the pretended title of Mary Wagner, claiming under a mere quit-claim deed, and bound by the conditions in her grantor's deed. This suit could be maintained. Gibert v. Peteler, 38 N. Y. [11 Tiff.] 165. Under the facts, no declaration of forfeiture, or other act, was necessary on the part of Eliza Fitzwilliam to revest title in her. 2 Wash. on Real Prop. [3 Ed.] ch. 14, p. 19, side p. 452, sec. 16; Moore v. Wingate, 53 Mo. 410.

Black J. Ray, J., absent.

OPINION

Black, J.

The plaintiffs are the heirs of Eliza Fitzwilliam, and as such prosecute this action of ejectment. She conveyed the lot in question to Chamberlain by deed dated the first of June 1864. The deed is expressed to be in consideration of eighty dollars, and the covenants therein recited. The deed, among other things, states, "said party of...