Dalby v. Snuffer

• Decision Date: 31 August 1874
• Citation: 57 Mo. 294
• Parties: JOEL DALBY, Appellant, v. ALFRED SNUFFER, Respondent.
• Court: Missouri Supreme Court

57 Mo. 294

JOEL DALBY, Appellant,

v.ALFRED SNUFFER, Respondent.

Supreme Court of Missouri.

August Term, 1874.

Appeal from De Kalb Circuit Court.

S. G. Loring and Hall & Oliver, for Appellant.

Strongs & Hedenburg, for Respondent.

ADAMS, Judge, delivered the opinion of the court.

This was an action of ejectment for the south-west quarter of section ten, in township fifty-nine, of range thirty-two, in De Kalb county.

Both parties claimed title from Charles H. Birch, to whom the patent from the United States was issued on the 28th day of March, 1859, on a previous location which had been made in the name of Birch, as assignee of a military bounty land warrant.

Before the issuance of the patent, Birch, by quit claim deed, conveyed the land to one Fay; and the defendant, by mesne conveyance, derived his paper title from Fay. The deed to Fay from Birch was never recorded.

Birch died, leaving a widow and an infant child. This child afterwards died, leaving its mother as its only heir at law. Afterwards, in 1865, the mother of the child, for a valuable consideration, conveyed the land in fee to the plaintiff.

The plaintiff claims that he made his purchase without any notice of the unrecorded deed from Charles C. Birch to Fay.

This question of notice was not contested upon the trial at least, that point is not raised here by the defendant. He rests his defense upon the statute of limitations.

The case was submitted to the court for trial, neither party requiring a jury.

The defendant gave evidence tending to show that Fay, the purchaser from Birch, took possession under his deed; and that this possession was continued for more than ten years in the subsequent purchasers, down to the defendant, who held the possession at the commencement of this suit. This possession was adverse, open and notorious. During the war the fences were burned, and one or more years no crops were raised; but the dwelling house remained, and was claimed to be under the control of the parties under whom the defendant claims, or their agents.

The plaintiff gave evidence tending to show that the possession during the running of the statute of limitations was broken in some years, by reason of no crops being raised, and no actual tenant being on the land.

At the instance of the plaintiff, the court declared the law as follows:

“The court declares the law to be, that in order to divest the title to the land, in plaintiff's petition mentioned, out of the plaintiff and vest it in the defendant, by reason of his adverse possession, that possession must be actual, visible, notorious and hostile, continuous and uninterrupted, under a claim of title, for a period of ten years next preceding the commencement of this suit.”

The court gave the following declarations at the instance of the defendant, to...