Crockett v. Morrison

• Citation: 11 Mo. 3
• Parties: CROCKETT v. MORRISON.
• Decision Date: 31 October 1847
• Court: Missouri Supreme Court

11 Mo. 3

CROCKETT

v.MORRISON.

Supreme Court of Missouri.

October Term, 1847.

ERROR TO ST. LOUIS CIRCUIT COURT.

BRIGGS, for Plaintiff.

POLK, for Defendant.

1. Taking the instructions in the reverse order in which they were given and stand with the bill of exceptions, I maintain that the second instruction given by the court, which is in substance that the admissions of defendant, Morrison, as to his title to the lot, were incompetent evidence, is the unquestionable law applicable to the case. See statute of Frauds; 15 Johns. 234, and 6 Johns. 21. 2. Nor was the court below wrong in giving the first instruction prayed by defendant's counsel. 15 Wend. 171; 4 Johns. 202; 4 Har. & McH. 72; 2 Roscoe on Real Actions, 581 (19 Law Lib. 3rd series, 167); 6 Cowen, 751; 3 Johns. 269; 16 Johns. 314. 3. The court below was warranted by the law in this case in overruling defendant's motion for a new trial.

NAPTON, J.

This was an action of ejectment by Crockett, to recover a lot of ground in St. Louis. The suit took place in May, 1845, and the defendant had a verdict and judgment. The plaintiff, to maintain his right to the possession, gave in evidence a copy of a deed from Hypolite Bolon to Francis, Edward and Lewis Bricknell, sons of Francis Bricknell, sr., dated August 22nd, 1811, having first accounted for the loss of the original. The plaintiff also produced a deed from Francis Bricknell, jr., to himself, conveying, in consideration of fifteen hundred dollars, the lot referred to in the deed from Bolon to himself and brothers, and all his real estate in the State of Missouri. This deed was dated 25th April, 1842. The plaintiff then introduced witnesses who knew Hypolite Bolon in 1810, and for several years after, and who stated that he was, during this acquaintance, in possession of the lot in controversy, and claimed it as his own. He had been dead for several years. The plaintiff also proved, by a certificate from the parish register of births and baptisms of the Catholic church of St. Louis, that Francis, son of Francis Bricknell and Catharine Rci, his wife, was born 29th June, 1805.

One of the plaintiff's witnesses testified, that on the day before the trial he had a conversation with the defendant about this suit, and asked defendant if he was not going to the court-house to see about the defense of the case; to which defendant replied, “no, that he did not intend to trouble himself about it; he supposed he should lose the case, any how, and he should give himself no trouble about it.”

On the cross-examination of another witness by defendant, the witness stated that he had often hauled lumber on the premises for George Morton, and that Morton has had possession of the lot for twenty odd years; that he had often heard Morton say that he had bought the lot and paid for it, and had a good title to it. This witness also stated that he had known Jean Baptiste Vieri in possession of the lot, but could not say positively whether before or after Bolon's possession. Old man Bolon's niece also lived on the lot at at one time, and after Bolon lived there; and Dr. Ablois possessed the lot after said niece. This was all the evidence, and at the instance of defendant the court gave the following instruction: Unless the jury are satisfied from the evidence that Hypolite Bolon, and those claiming under him, had possession of the premises for twenty years previous to the possession thereof by George Morton, they will find for the defendant. The court also instructed the jury, that the statements made by the witness in regard to the admissions made by the defendant, Morrison, as to his title to the lot, were incompetent evidence, and should be disregarded. Exceptions were taken to the opinions of the court, and the case brought here by writ of error.

We will first consider the last instruction given by the court, in which the jury are directed to disregard the evidence of Morrison's admissions relative to the expected result of the trial. If the statements or declarations of Morrison possess the character which this instruction would appear to attribute to them--if they be admissions illustrative of the possession or title of Morrison, they would be competent evidence. Where there is no title in the case except such as may be deduced from possession, the declarations of a party in possession are admissible as part of the res qestae to explain the character of that possession. Turner v. Belden, 9 Mo. R. 797. It is also true that a tenant's declarations are admissible to affect a documental title, and that such testimony would be a plain violation of the statute of frauds. Jackson v. Shearman, 6 Johns. R. 19; Jackson v. McVey, 15 Johns. R. 234. In this case, there was no documental title on either side, and the declarations of Morrison, who was in possession at the time they mere made, if they can be construed as admissions relative to his possession of title, would be competent. But the declarations of Morrison, upon which this instruction was based, scarcely deserve the name of admissions. They seem rather to have been hasty and inconsiderate answers to questions which might have been thought impertinent. The conduct of the declarant in appearing by his counsel on the day succeeding the one on which the conversation took place, was calculated to give it this character. But if the declarations were otherwise, and they expressed the deliberate conviction of the defendant at the time they were made; they are still inadmissible. The admission is, “that the defendant should not attend court or pay any attention to his suit, as he was satisfied or supposed it would go against him.” What is this but an admission by a party of what the law is? It is not a mere admission of facts, for the result of the suit depended on questions of law as well as fact, and to admit that the suit must terminate unfavorable to the defendant, must be an admission that the facts and the law arising on those facts were against him. It is well settled, that the admissions of a party in relation to a question of law, is no evidence. Such admissions do not make the law either one way or the other, and where the matter admitted involves a question of law as well as fact, it falls within this rule, and is therefore incompetent proof. Polk's Lessees v. Robertson, 1 Tenn. 463; Boston Hat Man. Co. v. Messenger, 2 Pick. 223; Craig v. Baker, Hardin, 280; Leforce v. Robertson, Littell's Sel. Ca. 22.

The second instruction given by the court declared the law to be, that twenty years' possession in Hypolite Bolon and those claiming under him, was necessary to sustain this action. As the action of ejectment is a possessory action, where no title appears on either side, a prior possession, though short of twenty years, will prevail over a subsequent possession which has not ripened into a title, provided the prior possession be under a claim of right and not voluntarily abandoned. The reasons upon which this doctrine is based, are very clearly stated by Judge Kent in Smith v. Lorillard, 10 Johns. 355, “That the first possession should in such cases be the better evidence of right, seems to be the just and necessary inference of law. The ejectment is a possessory action, and possession is always presumption of right, and it stands good until other and stronger evidence destroys that presumption. This presumption of right every possession of land has in the first instance, and after a continued possession of twenty years, under pretense or claim of right, the actual possession ripens into a right of possession which will toll an entry. But until the possession of the tenant has become so matured, it would seem to follow, that if the plaintiff shows a prior possession, and upon which the defendant entered without its having been formally abandoned as a derelict, the presumption which arose from the tenant's possession is transferred to the prior possession of the plaintiff, and the tenant, to recall that presumption, must show a still prior possession; and so the presumption may be removed from one side to the other, toties quoties, until one party or the other has shown a possession which cannot be...