Budd v. Collins

• Decision Date: 31 October 1878
• Citation: 69 Mo. 129
• Parties: BUDD, Plaintiff in Error, v. COLLINS.
• Court: Missouri Supreme Court

69 Mo. 129

BUDD, Plaintiff in Error,

v.COLLINS.

Supreme Court of Missouri.

October Term, 1878.

Error to Jackson Circuit Court.--HON. SAM'L L. SAWYER, Judge.

Azariah Budd, p. p.

1. The possession of the defendant was not adverse to the plaintiff's grantor. He held subordinate to the State, under the act of January 23rd, 1829, and cannot claim the statutory bar. 2 Terr. Laws of Mo., 194; 1 Washb. Real Prop., (3 Ed.) 482; Tyler on Eject., 880; Johnson v. Prewitt, 32 Mo. 553; Pease v. Lawson, 33 Mo. 35; Pentz v. Keuster, 41 Mo. 447; Jackson v. Stiles, 1 Cow. 575; Jackson v. Scissam, 3 Johns. 498; Luce v. Carley, 24 Wend. 451. The character of one's possession must be determined by the entry. Quinn v. Quinn, 27 Wis. 168. The defendant is estopped of his plea. His possession originated with H. C. Davis, who held as a tenant of the State. The relation of landlord and tenant, when once established, attaches to all who succeed, however remote. Jackson v. Davis, 5 Cow. 129; Tyler on Eject., 918, 919; 3 Washb. Real Prop., (3 Ed.) 110; 1 Greenl. Ev., §§ 189, 23, 25; Chouquette v. Barada, 23 Mo. 331. Subordinate estates may be partitioned; Wag. Stat., § 1, p. 966. And the sheriff's partition deed purports to convey, only, the right, title and interest of the parties to the partition suit. As the estate in partition was subordinate, no adverse possession can be predicated of the title conveyed. Jackson v. Town, 4 Cow. 602; Jackson v. Graham, 3 Caines 188. But the defendant was in possession, under the State, as tenant in common with the other heirs of Michael Collins, before and at the time of his partition purchase. He could not change that subordinate possession into an adverse one; nor while occupying and enjoying possession, under his lease, acquire and assert a title hostile to his landlord. He must first surrender his possession, or disclaim his landlord's title, and give him notice thereof. Forder v. Davis, 38 Mo. 107; Tondro v. Cushman, 5 Wis. 279; Quinn v. Quinn, 27 Wis. 168. By the terms of the grant under which the defendant holds possession, his title was determined February 2nd, 1870, by an authorized sale of the land by the State to the plaintiff. 2 Terr. Laws of Mo., 194, § 1. So, also, an estate at will is determined by the sale of the fee, by the landlord to a third party. 2 Black. Comm., 146.

2. But the defendant's possession did not originate under the limitation act of 1857. And if his possession was adverse, an action accrued to the State in 1853; when the defendant and his co-tenants inclosed the land. And the plaintiff's action is saved. Laws of Mo. 1856 and 1857, p. 80, § 15; Neilson v. Chariton Co., 60 Mo. 386. The defendant did not enter under his partition purchase. He was in possession before, and the character of his possession is determined by the entry. Smith's Land. & Ten., 218, note a; Quinn v. Quinn, 27 Wis. 168. The sheriff's partition deed related back and took effect from the day of sale; especially as the defendant was already in possession. But the sale did not occur under the limitation act of 1857. Jackson v. M'Call, 3 Cow. 79.

3. The defendant did not disavow his tenancy, nor give notice of any adverse claim under the act of 1857. But if the inclosure of the land was constructive notice, even that occurred prior to the act of 1857.

James K. Sheley for defendant in error.

By the act of 1857 the statute of limitations was made to apply as well to the State as to individuals. Defendant went into possession in that year under color of title, for he held under a sheriff's deed in partition, and all the time claimed the same as his property, having the whole inclosed, cultivating and pasturing it. It is true that the State had never parted with the paper legal title, but held the same till 1869. Plaintiff claims from or under the State, and he can only have such rights as the State has. The State would be barred by the statute of limitations, and, therefore, the plaintiff must be.

2. The fact that Davis had settled on the land and sold his claim to William Collins, and that the land was sold as the land of William Collins at the partition sale, does not make the defendant hold as tenant under the State. The act of January 23rd, 1829, establishes no such relation between the State and the person in possession as that of landlord and tenant. 2 Terr. Laws, p. 194. That act was simply a provision for persons to remain on the land until the Legislature should otherwise direct, upon condition that they should be liable for any damage. By the act of December 31st, 1830, (2 Terr. Laws, 210,) the Legislature did otherwise direct. By the provisions of this act it was made the duty of the Governor to cause all the seminary lands to be offered at public sale, and by the act of January, 29th, 1833, provision is made for the sale of the lands at private sale. 2 Terr. Laws, 358. The first act gives permission to remain until otherwise directed. Not the first principle of tenant and landlord is embraced in the act; it was simply an effort to prevent trespass. By permitting such persons to remain they would not be so apt to commit trespass or destroy the timber. In 1830, less than two years after the first act, they did otherwise direct. They severed the connection between occupants and the State, and ordered the land sold, not even recognizing pre-emption rights; all was ordered to be sold, and the person on the land was in no better condition than any other person, all were at liberty to bid. Then I conclude that the relation of landlord and tenant never existed, and even though it may have existed, the State severed it when the land was ordered to be sold. It never could be made to exist between defendant and the State; he went on the land long after the act ceased to exist. He had no connection with Davis, had the whole of it in actual possession, claiming the land as his. When he bought it he paid a full price. Was in fact innocent in all the transactions. Supposed he had a good title till speculators ascertained that it stood as State land on the books of the office. The State evidently received the money from William Collins for the land. The fact that two patents were issued by the State to Collins for the same piece of land, goes strongly to prove this.

HENRY, J.

This was an action of ejectment in the circuit court of Jackson county to recover forty acres of land lying in said county, and was submitted for trial to the court, without a jury, on the following agreed facts: The land is seminary land, which was donated to the State of Missouri by the United States. On the 2nd day of February, 1870, plaintiff purchased it from the State, and received from the State a patent therefor; defendant is in possession of the land. Michael Collins, father of defendant, in the year 1834, took actual possession of said land, took wood from it and fenced a few acres on the south side, and used it for plow land, and continued in possession, claiming title from the State until his death in 1850. During all that time he exercised such acts of ownership over the land as farmers generally do, except that he usually omitted it from his assessment list, and seldom paid taxes on it. After his death his administrator and heirs continued in possession of said land, as of the other lands belonging to said estate. In the year 1853, defendant and the other heirs of said Collins, claiming title to said land by descent, fenced and inclosed the whole of said forty acres, and have continued to keep up the fence and have remained in possession. The heirs of said Collins, including defendant, petitioned the circuit court of Jackson county for partition of the land of said Collins, on which there was a judgment of partition and order of sale, and on said sale in partition defendant purchased this tract and received a sheriff's deed for the same, dated in September, 1857, and he has ever since been in possession, paying taxes, &c. Neither the State of Missouri nor the plaintiff herein was a party to that partition suit. In 1828 one H. C. Davis settled on the land in controversy, and continued to reside thereon until 1834, and made a small improvement thereon included in the lot afterwards inclosed by Michael Collins. Davis claimed to hold a settler's right, which, in 1834, he sold to said Collins, who then took possession as above stated.

The court refused to declare the law to be that the statute of limitations did not apply to this action, and that upon the agreed statement of facts the possession of the defendant was not adverse, but gave the following declarations: First, If the court, sitting as a jury, find from the statement of facts agreed upon by the parties, that defendant, in the month of September, 1857, received from the sheriff of Jackson county a deed embracing the land in controversy; and that on or before the 1st day of January, 1858, he took possession of the land in controversy, and had a part or all of it inclosed, and used the same as farmers usually do, by cutting and using the wood and timber growing thereon, or cultivating the whole or a part thereof; or by using the whole or a part thereof for pasturage, and continued in such actual possession for ten consecutive years, all the time claiming the same as his property, then the verdict must be for defendant. Second, If the court believe from the said statement of facts that defendant, or those under whom he claims, was in the actual possession of the land in the year 1857, and has continued in the possession of the same ever since, during all said time exercising acts of ownership over the same, such as having the same inclosed, getting wood or timber on the same, and using the same for pasturage and cultivation, and all the time claiming the same as his property, then the verdict must be for the defendant.

Plaintiff then submitted to a non-suit with leave. His motion to set aside, afterwards filed, was overruled, and a judgment rendered against him, and...