Comstock v. Eastwood

• Decision Date: 22 December 1891
• Citation: 18 S.W. 39,108 Mo. 41
• Parties: COMSTOCK v. EASTWOOD et al.
• Court: Missouri Supreme Court

18 S.W. 39

108 Mo. 41

COMSTOCK v. EASTWOOD et al.

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

ADVERSE POSSESSION — WHAT CONSTITUTES — EVIDENCE.

1. Plaintiff, in ejectment to recover a tract of military bounty land, claimed title by the adverse possession of his grantor, H., for the statutory period of two years; the basis of his claim being a lease of the land to L. for a term of three years, purporting to have been executed by H. Defendants introduced evidence to show that H. and one J., under whom defendants claimed title, were joint owners of the land, and that J. drew up the lease to L., and inserted the name of H. as landlord, on account of J.'s physical inability to attend to the collection of rents, etc. Held, that the question whether or not the possession of H. by virtue of the lease was hostile to that of his co-owner, J., was for the jury, and that, the evidence being conflicting on that point, their verdict for defendants was conclusive of the matter.

2. In such case, if the lease was made in the name of H. for his sole benefit, and was so intended at the time of the execution thereof, and the possession of his tenant thereunder was taken and held with the intention of excluding J. from any right to the land, then such possession was adverse to that of J. and defendants claiming under him; but if the name of H., as lessor, was merely inserted therein for convenience, the possession of the tenant was not adverse to that of J., though H. held an interest in the land with J., and though he intended to claim an exclusive interest in himself.

3. Plaintiff contended that, as purchaser from and assignee of H., he became immediately possessed of the premises, and that the subsequent entry thereon by defendants was upon his actual possession, and, being wrongful, afforded them no protection against his rights, though the possession of his tenant had been short of the period of limitation. Held, that plaintiff's rights in that respect depended upon the relations of his grantor, H., and the tenant, L.; and, the question submitted to the jury being whether such tenant was in possession "as the tenant of H. and for him," their negative finding on that point was conclusive against plaintiff's asserted rights.

4. Defendants were not estopped to deny that the tenant's possession under the lease of H. was adverse to that of J. by the fact that defendants' grantor, claiming under mesne conveyances from J., had instituted ejectment against plaintiff, alleging that he unlawfully withheld the possession of the premises in question; the rule against inconsistent defenses applying only to inconsistent defenses in the same suit.

Appeal from circuit court, Chariton county; G. D. BURGESS, Judge.

Action of ejectment by John Comstock against Hosea P. Eastwood and others. From a judgment for defendants, plaintiff appeals. Affirmed.

A. W. Mullens, for appellant. H. Lander, for respondents.

MACFARLANE, J.

This is ejectment for the recovery of the S. E. ¼ section 4, township 54, range 19, Chariton county, commenced February 27, 1885, against defendants Eastwood, Kennedy, and Clair. Helen M. Rogers was afterwards made a party defendant on her own motion, claiming that the other defendants were tenants under a lease from Henry Rogers, deceased, and she was the sole heir at law of said deceased. The petition was in the usual form, laying the ouster on March 1, 1884. The answer was a general denial. The land was what is known as "military bounty land." The patent from the United States was issued to Thomas W. Britton January 4, 1819. No conveyance was shown from the patentee. Plaintiff claimed title by reason of alleged previous adverse possession for the period of two years. The trial was to the court without a jury. The basis for the claim of adverse possession was a lease of the land in question from Lucius D. Hyde to David Longsdorff, dated March 1, 1881, for a term of three years, or until the land was sold. Under this lease the lessee went into possession, and inclosed the whole tract with a substantial wire fence about June 1, 1881, and occupied and used the land as a pasture until October 20, 1883, when, without notice to Hyde or plaintiff, he removed the fence, and abandoned the possession. Immediately after Longsdorff gave up the possession defendants entered upon the land, and refenced it. On the 22d day of June, 1883, the lessor, Hyde, assigned the lease to plaintiff, and on the same day executed, acknowledged, and delivered to him a deed to the land. On the 27th of September, 1881, Henry Rogers and his daughter, the said Helen M. Rogers, commenced a suit in ejectment against Longsdorff and Hyde for the possession of the land. After the conveyance of Hyde to plaintiff, the latter was, on his own motion, made a party defendant in said suit. This suit was continued from term to term until April 9, 1884, when it was voluntarily dismissed by plaintiffs. As a basis for their possession defendants read in evidence the following: "Deed from Henry L. Gains and wife to John P. Jones, dated April 3, 1869; deed from John P. Jones and wife to Dan'l Whitinger and P. R. Bean, dated June 10, 1875; deed from said Whitinger and Bean to Howard O. Greene, dated April 8, 1879; deed from Howard O. Greene and wife to Henry Rogers, trustee for Helen W. Rogers, dated July 12, 1880; deed from Henry Rogers, trustee for Helen W. Rogers, to Ann E. Kennedy, wife of A. G. Kennedy, dated June 30, 1884." These are substantially the facts in the case, which are undisputed.

The evidence then offered by defendants tended to prove the following facts: That John P. Jones and L. D. Hyde had been, and were during the years 1881, 1882, and 1883, partners in the cattle business and in the ownership of considerable land, and that Jones made the contract for the lease of the land to...