Bushey v. Glenn

• Decision Date: 07 December 1891
• Citation: 107 Mo. 331,17 S.W. 969
• Parties: BUSHEY v. GLENN.
• Court: Missouri Supreme Court

17 S.W. 969

107 Mo. 331

BUSHEY v. GLENN.

Supreme Court of Missouri, Division No. 1.

December 7, 1891.

LIMITATION OF ACTIONS — MILITARY BOUNTY LANDS — TITLE BY ADVERSE POSSESSION — COLOR OF TITLE.

1. The two-years limitation relating to military bounty lands, prescribed by Gen. St. 1866, p. 745, § 1, which took effect August 1, 1866, (page 882, § 2,) applies to an adverse possession of such lands after such date, and the limitation of ten years is inapplicable.

2. Open and notorious adverse possession of military bounty lands by fencing and leasing the same, and pasturing cattle thereon, for the statutory period of limitation of two years, (Gen. St. 1866, p. 745, § 1,) prior to an action for recovery of the land, gives one in such possession a good title, whether he has color of title or not.

Appeal from circuit court, Linn county; W. H. BROWNLEE, Judge.

Action of ejectment by Frank A. Bushey against Robert Glenn. Plaintiff appeals from a judgment in favor of defendant. Affirmed.

Chas. A. Davis and C. D. Yancey, for appellant. A. W. Mullens and H. Lander, for appellee.

SHERWOOD, J.

Ejectment for the S. ½ of the S. W. ¼ of section 26, township 58, range 21. The title emanated from the government by patent issued to Lewallen May 5, 1819, based upon a warrant for military services rendered prior to that time. This being the case, and as the cause of action — the adverse possession of the land — occurred after August 1, 1866, it is beyond question that the provision in Gen. St. p. 745, § 1, does not apply, and that the two-years statute of limitations relating to military bounty lands does apply. Neilson v. Chariton Co., 60 Mo. 386. The plaintiff tried his cause on the theory that the 10-years statute governed; but this was a mistake, and, as the single in-instruction which he asked embraced this theory, it was properly rejected as an entirety, saying nothing of other matters which it contained.

2. Various errors besides the refusal of the plaintiff's instruction are assigned; but it is unnecessary to notice them, as the evidence is undisputed that the defendant had been in the open and notorious adverse possession of the premises, having fenced in the entire premises, leased them for one year, and pastured his cattle there, after his purchase from Graham, and maintained such possession for over two years before action brought against him. These facts gave him a good title against the world, regardless of whether he had a good paper title or...