Doan v. Sloan

• Decision Date: 31 October 1867
• Citation: 42 Mo. 106
• Parties: DOAN et al., Respondents, v. SLOAN, Appellant.
• Court: Missouri Supreme Court

42 Mo. 106

DOAN et al., Respondents,

v.SLOAN, Appellant.

Supreme Court of Missouri.

October Term, 1867.

Appeal from St. Louis Circuit Court.

This was an action in ejectment. The answer put in issue the allegations of the petition, and by way of defense set up the statute of limitations. In 1842 George Morton owned the premises. The plaintiffs gave in evidence a sheriff's deed to Daniel D. Page, dated August 6, 1842, made under a judgment against Morton; a deed of trust from Page and wife to S. B. Kellogg, trustee, dated October 2, 1857; and a deed (made after a sale under the deed of trust) from Kellogg, trustee, to plaintiffs, dated October 8, 1864.

The defendant offered evidence tending to show an adverse possession by himself, and also exhibited a deed from Morton to himself, dated November 6, 1862. Plaintiffs also presented evidence to rebut the defendant's adverse possession.

For the plaintiffs, the court gave the following instruction, to which defendant excepted:

“The defendant, in order to prove a defense under the statute of limitations, must show that the possession set up as a defense was adverse to plaintiffs, and those under whom plaintiffs claim title; and that if, from the time of the execution of the deed of the sheriff of St. Louis county to Daniel D. Page, given in evidence by plaintiffs, such possession was not adverse to said Page, the defendant must show when it became adverse, and that such adverse possession of defendant commenced under a claim of title or ownership of said defendant as owning the same for at least ten years before the commencement of this suit, and so continued uninterruptedly and adverse to plaintiffs, and those under whom plaintiffs claim title, for at least ten years prior to the commencement of this suit.”

For the defendant, the court gave the following instructions:

1. If the jury find from the evidence that the fee of the premises in question, in the year 1842 and prior thereto, was in George Morton; that the sheriff's deed, read in evidence by the plaintiffs, is genuine; and that the defendant entered into the premises sued for as early as 1842 or 1843, and that he has ever since continued in possession, adverse to D. D. Page, then it was competent for said Page, to whom said sheriff's deed was made, to sue for the possession of the land at any time within twenty years from the date of the defendant's first entry into the premises in question.

2. If the jury find from the evidence that, for a period of ten years and upward next before the commencement of this suit, the defendant has held actual, visible, undisturbed, and continuous possession of the premises in question, claiming them as his own, and that such possession of the defendant during all that time has been adverse to the plaintiffs and the party under whom they claim, then they cannot recover in this action, and the jury should find for the defendant.

The court refused to give the following instruction asked by the defendant, and the defendant excepted: “If the jury find from the evidence that the defendant entered into the possession of the premises in question in the year 1842 or 1843, and that he has ever since continued in the possession thereof, and if the jury also find from the evidence that the defendant's said possession has been visible or notorious, and that he, during that time, has exercised acts of ownership over the premises, then the jury may presume that the defendant holds possession of said premises under a claim of title or right thereto.”

After the jury had retired, they returned and asked the court the following questions: 1. “The jury wish to know whether the court instructs the jury that the defendant must have proved that he holds adverse to D. D. Page and those claiming under him?” and were told “the court so instructs the jury.” 2. “Must the defendant have proved that such adverse possession must be proved by a claim of title or ownership adverse to said plaintiffs, besides the peaceable, notorious, continued, visible possession?”“The court so instructs the jury; that is to say, it must be proved affirmatively by the defendant that he held adverse possession of the property for at least ten years before the suit was brought, and that he held it during that period as the owner of it, not recognizing any body else as owner, and not occupying it as a mere squatter claiming no right to the property.”

Krum, Decker & Krum, for appellant.

I. The court below erred in giving the instruction asked by the plaintiffs. This instruction is directed to the adverse possession of the defendant. Considered by itself, this instruction does not assert the law correctly on this point. The only interpretation that can be given to it is that the possession of the defendant was not adverse unless he proved that it commenced under a claim of title. The succeeding words--“or ownership of the defendant as owning the same”--instead of qualifying the preceding phrase, ““claim of title,” make it stronger. No one can doubt how the jury interpreted this instruction. The questions propounded by the jury to the court, after they had retired to consider of their verdict, show most conclusively that the jury understood this instruction to mean that the defendant must prove that he had possession of the locus in quo under a claim of title; that it was not sufficient for the defendant to possess the premises and claim them as his own, but that the claim must be accompanied by an assertion of title, and that this assertion of title must be proved affirmatively. The jury was misled by this instruction. It was sufficient if the defendant had actual, visible, continuous, and undisturbed possession of the premises, claiming them as his own, no matter whether his claim was founded on a paper title or not. The law does not require him to prove that he asserted his claim under a title, in the common acceptation of that word.

II. The instruction just considered is inconsistent and contradictory to the one directed to the same question and given at the instance of the defendant. The instruction of the defendant on this point asserts the correct rule of law, and is to the effect that if the defendant held the actual, visible, continuous, and undisturbed possession of the premises in question, claiming them as his own, to the exclusion of the plaintiffs, for ten years next before the suit, such possession is a bar to the plaintiffs' recovery.

III. After they had been some time considering their verdict, the court below gave an additional instruction, which amounts simply to an abstract proposition of law. The court, in an instruction single and complete in itself, tells the jury that the defendant must prove that he held the premises in question adversely to Daniel D. Page and those claiming under him. The court does not inform the jury what facts, if proved, will constitute adverse possession, but leaves the jury to interpret the law for themselves. The court below repeated to the jury its previous error in respect to claim of title by defendant, but in a worse form.

IV. The law in respect to adverse...