Cooper v. Ord

• Citation: 60 Mo. 420
• Parties: HANNAH COOPER and her husband, JOHN W. COOPER, Respondents, v. ROBERT ORD, Appellant.
• Decision Date: 31 May 1875
• Court: United States State Supreme Court of Missouri

60 Mo. 420

HANNAH COOPER and her husband, JOHN W. COOPER, Respondents,

v.ROBERT ORD, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Carroll Circuit Court.

Hale & Eads, for Appellant.

I. The court erred in allowing John W. Cooper to testify in behalf of his wife, Hannah Cooper, who was the real plaintiff--the action having been brought to recover the land in her name. He was not a competent witness for her. (Paul vs. Leavitt, 53 Mo., 595.)

II. The court erred in admitting the deed from Collett to Hannah Cooper as color of title to the west half of the land in controversy. The evidence all shows that the defendant took possession of the land in 1866, and the deed from Collett was executed and bears date in 1870. There was no possession under the Collett deed. It was then held adversely by Ord and an instrument of writing cannot operate as color of title, unless accompanied by possession. It must either transfer the title or be accompanied by a transfer of the possession. (Crispen vs. Hannavan, 50 Mo., 549.)

The court erred in giving the third instruction asked by plaintiff.L. H. Waters, with Ray & Ray, for Respondents.

I. There was such privity between the various occupants as will refer the possession of each to the original entry, and the plaintiffs are entitled to recover upon the title acquired under the statute of limitations by their adverse possession, so far as the east half of the land in question is concerned. (Ang. Lim., 5 ed., § 414; Crispen vs. Hannavan, 50 Mo., 536; Fugate vs. Pierce, 49 Mo., 441; Rannells vs. Rannells, 52 Mo., 109.)

II. Defendant obtained possession by tampering with plaintiffs' tenant, and defendant will not be permitted to controvert their title. (Tayl. Landl. & Ten., 705; Ang. Lim., 5 ed., § 437; Rutherford vs. Ullman, 42 Mo., 416.)

III. When no title appears on either side, a prior possession, though short of the statutory bar, will prevail over a subsequent possession which has not ripened into a title, provided the prior possession was under a claim of right, and provided also that the defendant is a trespasser and entered upon the actual or constructive possession of the plaintiff. (Crockett vs. Morrison, 11 Mo., 3; Bledsoe vs. Simms, 53 Mo., 305.)

The prior possession of plaintiffs, as to the east half, and the prior possession of Collett as to the west half, which were transferred to the plaintiffs, certainly entitled them to recover as against defendant, who had entered under plaintiffs' tenants.

IV. The defendant failed to show any colorable title. The record of the deed from Love and Reynolds to his landlord, were properly excluded. The original seemed to be in the landlord's possession, and should have been produced. Having entered under plaintiffs tenant, the defendant could not set up an outstanding title in any one.

V. The plaintiff, John Cooper, was a competent witness to prove the facts proved by him. If he was not, the exceptions taken in the court below to his testimony were not preserved. He is competent now, since the act of 1874. (Laws of 1874, p. 60, § 1.)VORIES, Judge, delivered the opinion of the court.

This was an action of ejectment. The petition states, that in 1866 plaintiffs were, had for a long time been, and still were, husband and wife, and that on the first day of July, 1866, the said Hannah Cooper, the wife, etc., was, had for a long time previous thereto been, and still was, the owner in fee of the southwest quarter of section twelve, in township fifty-four, of range twenty-two, in Carroll county, Missouri; that on the day and year last aforesaid, they were entitled to the possession of the said premises, and being so entitled, the defendant afterwards, on the 10th day of July, 1866, entered into and upon said premises, and unlawfully holds the possession thereof from plaintiffs, to their damage, etc.

Defendant in his answer admits that plaintiffs are husband and wife, and that defendant is in the possession of the lands named, and states that he holds under title thereto; but all other allegations of the petition are denied.

The suit was commenced on the 7th day of September, 1870. The trial was had before the court without the intervention of a jury. Neither party produced or relied upon any paper title to the land in controversy, but each relied on possession under color of title.

The plaintiff introduced in evidence, as color of title to the east half of the quarter section of land named in the petition: 1st. A quit-claim deed, bearing date March 7th, 1853, and recorded in 1870, from Elijah G. Simpson to Jesse Parker, for said east half of said land. 2d. A quit-claim deed for the same land, bearing date the 1st of August, 1854, from Jesse Parker to Elizabeth Hacker.

Plaintiffs then offered in evidence, for the same purpose, what purported to be a deed from Elizabeth Hacker to plaintiff, Hannah Cooper, for the same land.

This paper was objected to by the defendant, on the ground that it appeared from the face of the deed that the name of the grantee therein had been changed from John W. Cooper to Hannah Cooper. To explain this erasure and change in the deed, both parties introduced evidence, from which it clearly appeared that said deed was originally executed to John W. Cooper, and afterwards changed, without authority, by erasing the name of John W. Cooper and inserting the name of Hannah Cooper, at the request and by the direction of said Hannah. Whereupon the court sustained the defendant's objection to said deed, and excluded the same from the evidence in the case.

The plaintiff then introduced evidence tending to prove that one Elizabeth Baley first improved this east half of said land in the spring of 1851; that she lived on said land for about one year, and that one Newton occupied the land one year under Mrs. Baley; that Mrs. Baley then sold the said land to Jesse Parker, who took possession under his purchase; that Parker in 1854, and before he received a deed for the land, sold the same to Elizabeth Hacker, Parker remaining in possession until October, 1854, when he delivered the possession to Mrs. Hacker, on the same day that he went out; that Mrs. Hacker continued in the actual possession of the improvements, and improved parts of said land, claiming the whole from the 3d day of October, 1854, to the 25th day of October, 1863, cultivating a field in said east half of said quarter section, claiming the whole of said half; that Mrs. Hacker in September, 1863, sold said land to John W. Cooper or to his wife, Hannah Cooper, and made a deed to John W. Cooper; that Cooper and wife took possession under the purchase from Mrs. Hacker in October, 1863, and remained in possession until the month of October, 1864; that Mrs. Baley put into cultivation, while she occupied the land, a field of five acres, and erected a house; that afterwards the field was increased to fifteen acres, and a barn erected on the land; the possession was continuous from 1851 up to October, 1864, when plaintiff moved from the land, leaving the same in the care and possession of others, as their tenants, who cultivated the improved land; that during the time that said tenant was so cultivating the land, one Fisher, having made the acquaintance of a man by the name of Love, who, with one Reynolds, claimed to own the land, was requested by said Love to take possession of the house on said land, (which was then vacant) and hold the possession for Love and Reynolds. Fisher agreed that he would go into the house and hold it until he was ready to move elsewhere, and in the month of July 1866, Fisher removed into the house, and swears that he went in with the consent of the tenants, but this is denied by them. After Fisher took possession of the house, David Ord, the father of defendant, purchased the land of Love and Reynolds. After this purchase, defendant, who was representing David Ord, requested Fisher to let him know when he was going to vacate the house. This Fisher did; and when Fisher went out of the house, Ord, the defendant, went in. Ord took possession in October or November, and has held possession ever since.

Plaintiff, John W. Cooper, was then offered as a witness. The defendant objected on the ground that he was not competent to testify for plaintiffs. The court ruled that he was not competent for his wife, but that he might testify as to any matter affecting his own interests, and he was admitted to testify in the case. To which ruling of the court, the defendant excepted.

Cooper testified that the purchase from Mrs. Hacker, of the eighty acres of land was made by his wife in 1863, and that they moved on the land shortly after, and remained there for about one year; that he then left, leaving his wife in possession; that the defendant, Ord, took possession of the land in controversy in October, 1866, under a purchase from W. R. Love, of a half section of land including the land in controversy; that the defendant was a tenant of David Ord, who claimed the land under purchase from Love; that Fisher was in possession under plaintiff and let defendant in, and was paid for so doing by defendant; that witness ordered defendant to leave the land, but he claimed to be the owner, and would not leave.

It was admitted by both parties that the land in question was military bounty land, and was patented to Ethan Hurlburt.

The plaintiff then offered in evidence, as color of title to the whole quarter section of land in controversy, and for the mere purpose of showing a transfer of possession to plaintiffs, and for no other purpose, a deed from Henry Collett to Hannah Cooper, purporting to convey or quit-claim to her the quarter section of land in controversy, which deed was dated on the 28th day of August, 1870, and was for the consideration of one dollar.

The defendant objected to this deed, because there was no evidence of any possession of plaintiff under said deed, and on the ground that it was admitted that defendant had been in possession...