Crispen v. Hannavan

• Decision Date: 31 August 1872
• Citation: 50 Mo. 536
• Parties: E. P. CRISPEN, Respondent, v. B. HANNAVAN et al., Appellants.
• Court: Missouri Supreme Court

50 Mo. 536

E. P. CRISPEN, Respondent,

v.B. HANNAVAN et al., Appellants.

Supreme Court of Missouri.

August Term, 1872.

Appeal from Ray Court of Common Pleas.

Ray & Ray, with Shields, for appellants.

I. The testimony is sufficiently consistent and clear to show that there were two or three breaks between the time when possession was first taken by Judge Arnold, in 1836 and 1861, when possession was last had by any one under whom plaintiff claims. The first noticeable break in the possession was a period between the occupation of Hugh Standly and that of his family, and the time when Norvill took possession. The second and most distinct and protracted break in said possession was for some two or three years prior to the time when Shannon took possession; and the third break in the possession was from about 1861 or '62 up to 1865 or '66, when defendant took possession. It will also be observed that from the 30th of March, 1840, when Hugh Standly conveyed to George Ashby, there was a separation or severance of the actual possession from the “colorable title,” up to the time of the death of said Hugh Standly in 1841, and on to the time when his widow and family left it, prior to Norvill's possession; for it will not be pretended that George Ashby, to whom Hugh Standly sold it, ever took possession under said conveyance, either by himself or any tenant of his. But the truth is that said Standly, notwithstanding his sale, and thus parting with his colorable title, continued to hold the possession up to his death, and his family after him, without any color of title whatever. His possession, after his conveyance to Ashby, was a naked possession, without any color of title to support or justify the same; or, in other words, during the time it lasted there was a naked possession, without a claim, much less color of title, and, in fact, after an express disclaimer of title. To make title by statute of limitation, there must not only be possession, but that possession must be under a claim of title accompanying said possession.

II. As Hugh Standly was dead at the date of said deed from Ashby, it cannot be pretended that the title vested in him so as to authorize his administrator to sell it as his property. Standly being dead at the date of this deed, the only grantees in whom it could vest were his heirs. As to the real estate, the title of that vests immediately in the heirs of the intestate, and, so far as it is concerned, the heirs are only the legal representatives of the deceased. The administrator cannot claim the title by virtue of this deed, and even if he could, his sale of the property, as such administrator, as the property of the deceased, would fail to pass the title, if in him, by operation of the deed in question. The administrator does not attempt to sell and pass the title as a title resting in him, but as a title resting in the deceased, and which he undertakes to sell by virtue of an order of the Probate Court. The subsequent sale by Wm. Ashby as Standly's administrator to George Norvill, if it had been formal, legal and valid in other respects, is inoperative in this case, and fails to pass any title, or any color of title, for the reason that, under the circumstances, there was no decent pretense that there was any title, either colorable or otherwise, in Hugh Standly, at the time of his death, which an administrator could transfer by his deed as such.

III. The decree of the Carroll Circuit Court in the case of Shannon v. Hunton's Adm'r and Heirs of Plemmons, was null and void, or at least inoperative to pass or transfer any title or color of title. (See 18 Mo. 561; 22 Mo. 310; 18 Mo. 522; 27 Mo. 364; Ang. Lim. 410; 25 Mo. 201; 23 Mo. 331; 8 Cranch, 462; Tyler Eject. 871, 900, 913; 1 Cow. 275; 30 Mo. 166.)

IV. The deed from Shannon's administrator to Love and Sears, dated December 7, 1860, was manifestly inoperative to pass or transfer either title or color of title, for the want of jurisdiction in the County Court which ordered the sale, when, as will be admitted, the Probate Court of said county--a separate and independent tribunal--had, by law, exclusive jurisdiction of the subject-matter of said order of sale. That order being without jurisdiction, is utterly void, and confers neither title nor color of title.

V. If there was evidence to show a continuity of the actual possession of this land, the plaintiff has not shown a corresponding continuity of the colorable title by which he attempts to justify and protect said possession.

VI. When such a party undertakes to transfer that portion of his tract which remains uninclosed, and of which he claims to have the constructive possession by virtue of his colorable title, he can only do so by a formal deed of conveyance competent to convey a valid title, if he had it. In this case the deed from Norvill to Hunter, which has no seal, would not avail to pass the colorable title outside of the ten or twenty acre field or inclosure of which only the grantor had the actual possession.

VII. As to what constitutes such adverse possession under the statute as will confer title, and as to what may be accepted as giving or transferring color of title, see following authorities: 23 Mo. 117; 27 Mo. 412; Tyler Eject. 870, 874, 913; 11 How. 424; 8 Cow. 589, 605; 35 Ill. 392; 18 Iowa, 261; A. K. Marsh. 285; 17 How. 601; Ang. Lim. 409, 417; 3 Washb. Real Prop. 122, 138; 35 Mo. 77.

L. H. Waters, for respondent.

I. Color of title is that which in appearance is title, but which in reality is no title, but no exclusive or peculiar character or importance attaches to the ground of the invalidity of the apparent or colorable title. (Wright v. Matteson, 18 How. 50.) It is alike immaterial whether the ground of the invalidity is the want of title in him who made the colorable title, or want of form in the writing relied on to give the color. The paper claimed as color of title need not be formal or sufficient to convey title, if title in fact had existed. It is well settled that it need not be prima facie on its face. (Pillow v. Roberts, 13 How. 472; Dickenson v. Breeden, 30 Ill. 279; McCoy v. Dickenson College, 5 Serg. & R. 254; Jackson v. Newton, 18 Johns. 360; Walls v. Smith, 19 Ga. 8; Dobson v. Murphy, 1 Dev. & Bat. 586; Whiteside v. Singleton, 1 Meigs, Tenn., 207; Edgerton v. Bird, 6 Wis. 527.)

II. The possession must be connected and continuous beyond a doubt, but “to determine precisely what constitutes continuity of possession, when taken successively by different persons, is a different question, and must depend to a great extent on the circumstances of each case.” (Ang. Lim. 417, § 413; Tyler Eject. 908.) In Andrews v. Mulford, 1 Haywood, N. C., 320, it is said the possession must be continuous, “without entry, claim or action on the other side.” In Smith v. Chapin, 31 Conn. 530, the court says: “Doubtless the possession must be connected and continuous, so that the possession of the true owner shall not constructively intervene between them.” If the possession of the true owner has not intervened, the continuity is unbroken; while it is well understood that the several possessions must be so connected or knit together that no opportunity is afforded for the seizin of the true owner to intervene and thereby break the continuity of the possession.

III. The disseizor's possession under color of title is adverse to the extent of the boundaries in his deed. If he transfers his possession and claim by a conveyance, insufficient to pass title but sufficient to give color, and accompany such transfer by a transfer of possession in fact, the grantee clearly is entitled to the protection of the statute of limitation from the commencement of his possession. If he cannot tack his possession to the possession of the disseizor, it is because there was an imaginary point of time after the possession of one ended and before the other began, when the possession of the true owner constructively intervened between them and disrupted the continuity. The possession of the second occupant, under a conveyance sufficient to give color of title and establish a privity between the occupants, however inadequate to carry the title, will draw to it the protection of the statute of limitation, and enable him to tack his possession to the possession of his predecessors. Indeed, the chief office of color of title is to characterize the possession and to define the extent of the claim. “There must be such privity that the possessions may each be referred to one entry, as in the case of landlord and tenant, or in the case of the heirs of a disseizor, as father and son.” (Ang. Lim. 418; Tyler Eject. 912.) And it is sufficient if privity of contract, blood or estate exist between the consecutive possessions, and also “if an entry is by the consent of the previous occupant, indicated by a contract or an act of the law, passing the possession from one to another” (30 Mo. 99); for if there exists such privity between the several occupants, then the possession of the true owner cannot constructively intervene. (Collins v. Smith, 18 Ill. 160; Smith v. Chapin, 31 Conn. 530; Jackson v. Thomas, 16 Johns. 293; Menkins v. Blumenthal, 27 Mo. 203; Overfield v. Cristie, 7 Serg. & R. 177; McCoy v. Dickenson College, 5 Serg. & R. 254; Cunningham v. Patton, 6 Barr, 355.)

IV. Standly's possession under the deed from Arnold was coextensive with the premises described by his deed. (Wagn. Stat. 917, § 5; Schultz v. Lindell, 30 Mo. 310.) Standly's possession, after the conveyance to Ashby, was in accordance with his deed, and as tenant to his grantee. (Jackson v. Burton, 1 Wend. 341.)

V. The deed from Standly's administrator to Norvill is color of title. It is a writing connected with the title, and defines the limits of the claim. (Walls v. Smith, 19 Ga. 8.) It is title in appearance. (Tyler on Eject. 872.) It has a grantor and a grantee, and purports to convey the title. (Brooks v. Bruyn, 35 Ill. 392.) It purports to...