Farrar v. Heinrich

• Decision Date: 31 October 1885
• Citation: 86 Mo. 521
• Parties: FARRAR et al., Appellants, v. HEINRICH, alias HENRY et al.
• Court: Missouri Supreme Court

86 Mo. 521

FARRAR et al., Appellants,

v.HEINRICH, alias HENRY et al.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

C. & C. E. Gibson for appellants.

(1) It is the settled law of this state that an adverse possession of ten years will not only bar a recovery by the owner, but will confer his title upon the adverse possessor. Merchants' Bank v. Evans, 51 Mo. 335; Shepley v. Cowen, 52 Mo. 559; Barry v. Otto, 56 Mo. 177; Ridgeway v. Holliday, 59 Mo. 444. (2) The title to a common field lot, under the act of 1812, emanated from the government upon the passage of the act ( Glasgow v. Lindell Heirs, 50 Mo. 60), and the limitation began to run from that time in favor of an adverse possession. Langlois v. Crawford, 59 Mo. 456. Hence, it follows that the adverse possession of plaintiffs' grantors from 1836 to 1860 conveyed to them the title set up by the defendants, based upon a confirmation by the act of 1812. Therefore, the plaintiffs' grantors had a perfect title to the land in dispute, and were the owners in fee thereof, and in actual possession under fence, at the time the defendants took forcible possession of the same in 1861. (3) The title to the premises never vested in Heinrich, for he never was in possession under claim of ownership, or with the interest to assert an adverse title in himself. Bowman v. Lee, 48 Mo. 335; Bradley v. West, 60 Mo. 33; Knowlton v. Smith, 36 Mo. 507; St. Louis University v. McCune, 28 Mo. 481; Kincaid v. Dormey, 47 Mo. 337; Tamm v. Kellogg, 49 Mo. 118. (4) The statute of limitations would not run in defendants' favor from 1860 or 1861, for the reason that there was nothing to apprise plaintiffs or their grantors that Heinrich was the tenant of his co-defendants, and as such, holding adversely to plaintiffs. Possession of land of itself does not constitute title, nor is it necessary evidence of title. Possession of itself evidences only present occupancy by right. Blaisdell v. Martin, 9 N. H. 255; Richard v. Williams, 7 Wheat. 105; Lincoln v. Thompson, 75 Mo. 613. Heinrich's possession only indicated to plaintiffs' grantors that he was the present occupant, and they had a right to treat him as such and were not called upon to speculate whether he held any kind of relations with those who were perfect strangers to them. The bar of the statute of limitations cannot be invoked, unless the facts constituting the adverse possession are sufficiently patent to apprise the owner that his property is adversely claimed. Fugate v. Pierce, 49 Mo. 441; Myler v. Hughes, 60 Mo. 115; Leeper v. Baker, 68 Mo. 400; Turner v. Hall, 60 Mo. 277; Key v. Jennings, 66 Mo. 356; Norfleet v. Hutchinson, 68 Mo. 597; Alexander v. Polk, 39 Miss. 755; 3 Washb. R. P. (4 Ed.) 141; Tyler on Ejectment, 909; 4 Mass. 419; Benge v. Creagh, 21 Ala. 156; Brown v. Cockerill, 33 Ala. 47; School, etc., v. Lynch, 33 Conn. 334. The statute of limitations was never designed to apply to a case of this nature. Its object is intended only against those who sleep on their rights, but it was never designed to deprive an owner of his land, when he could not, by the utmost diligence, discover from the marks of adverse possession that others had any claims to it. (5) The point whether Heinrich, by his lease to the plaintiffs, became their tenant is totally foreign to the question, whether the nature and quality of the defendants' possession was such as to confer on them a title by the statute of limitations. Though Heinrich never became the tenant of plaintiffs and never held possession for them, this is no decision that the possession which the defendants held was actual, visible, and notorious, or such a possession as is required by the statute of limitations. The right of plaintiffs to recover against Heinrich cannot be seriously disputed. It would be a plain fraud for him to take a lease for the expressed and avowed purpose of turning the possession over to plaintiffs' grantors, and in every way holding possession under and for them, and then to turn up a secret lease to his co-defendants, drawn like a trump card from under the table, and claim the title to the land; such claim must be rejected, although it is a trump. The co-defendants are in no better position than Heinrich.

D. T. Jewett for respondents.

(1) The lower court found that Polk and his associates, in good faith claiming title to the land, took possession of the same in 1860, where it crossed the New Madrid Survey, in the name of Genereaux, and fenced it up separately from that survey, that he and his associates put the tenant Heinrich on it under a lease, and that Heinrich went on as tenant of Polk and others, in good faith, and not as a trespasser. The court, as trier of the facts, having thus found, this court is concluded by such finding in view of the fact that there was evidence to justify it. Attornment means the abandonment of one landlord and the accepting of another. This was not done by Heinrich; he did not abandon the first, and did not accept a second as a substitute, as he never paid the second any rent. But let the plaintiffs call it an attornment if they please. The statute (section 3080, R. S. of 1879) says the act is void and shall not affect the possession of the landlord. See, also, the following cases where the force and effect of the statute have been construed: Schultz v. Arnot, Lindell et al., 3 Mo. 172; Rutherford v. Ullman, 42 Mo. 216; McCartney v. Auer, 50 Mo. 395; Bank v. Clavin, 60 Mo. 559.

J. E. Munford also for respondents.

Adverse possession for ten years will not only bar a recovery by the true owner, but will extinguish his title and confer it on the adverse occupant. On this point see: 59 Mo. 444; 56 Mo. 177; 47 Mo. 282; 44 Mo. 596; 38 Mo. 561; 37 Mo. 408; 33 Mo. 35; 30 Mo. 99; 16 Mo. 273; 13 Mo. 335; 11 Mo. 3. The possession need not be actual, but the usual acts of ownership is sufficient. See: 68 Mo. 400; 66 Mo. 356; 60 Mo. 420; 49 Mo. 441; 22 Mo. 70; 20 Mo. 186.

RAY, J.

This is an action of ejectment for the possession of a lot of land in the western part of the city of St. Louis, described in the petition. The suit was commenced in 1877 against Heinrich alone, who was in the actual possession of the premises. The court, on motion of J. E. Munford and the heirs of Trusten Polk, who claimed to own the premises in fee, and that Heinrich was their tenant, admitted them as co-defendants.

The petition is in the usual form; the answer denies the allegations of the petition, pleads adverse possession, the statute of limitations and title in defendants. A jury being waived, the cause was tried by the court. The testimony material to the case was substantially as follows: The plaintiffs gave in evidence a patent issued in 1829 on a New Madrid location in the name of Joseph Genereaux or his legal representatives, which embraced and covered the land in dispute and other lands besides. They, also, gave in evidence various deeds from the heirs of said Genereaux down to themselves. They also gave evidence that N. P. Taylor, under whom they claimed title in 1836, took possession and fenced the whole of said Genereaux survey, and that he and his heirs continued to occupy and live upon the same, under claim of title until 1860, when Trusten Polk and his associates crossed over said fence and took possession of the tract now in dispute and fenced up the same separate and distinct from the balance of said inclosure, as hereafter stated.

The defendants, on their part, put in evidence a confirmation by the United States of a common field lot in the Grand Prairie Common Field of St. Louis to Francis Faustin dit Parent, under the act of congress of June 13, 1812, and a survey of the same by the United States duly made, recorded, and numbered 1661. This confirmation and survey also embraced and covered the land in controversy and so fenced up by said Polk and associates. Defendants also gave in evidence various deeds for said common field lot from persons claiming to be heirs and legal representatives of said Faustin dit Parent to Trusten Polk and Vandeventer, under whom said co-defendants claimed title. These deeds bore date prior to 1861. The evidence shows that in 1860, Polk and associates, under color of title, took possession of that part of the Genereaux survey, which is covered by said confirmation and survey 1661, in name of said Faustin dit Parent, as before stated. They took down the fences put there by Taylor, and fenced up that portion of the Taylor tract covered by said confirmation and survey in the name of Faustin, separate and distinct from the balance of the Taylor inclosure as aforesaid. Afterwards, in 1861, Polk and associates put the defendant, John Heinrich, into the possession of the land thus fenced up by them, and gave him a lease of the land as their tenant at an annual rent of eighty dollars. The first lease so given to Heinrich, was dated February 23, 1861. Subsequent leases given by the same parties to Heinrich, call for an annual rent of ninety dollars. The proof is, that Heinrich continued to occupy said land from the time he was first so put in possession till the commencement of this suit, as the tenant of the Polk heirs and associates, paying regularly the amount of rent stipulated in said leases. In 1863, Major Bryan and J. G. Page, claiming to represent the heirs of Taylor, went to the land and told Heinrich that the land he was occupying belonged to the heirs of Taylor, and that unless he took a lease from them, they would turn him out. They offered him a lease for one year at a nominal amount of one dollar, and he took it. He afterwards took other leases from them at the same nominal rent. These leases from the Taylor heirs covered other lands besides the tract now in dispute.

During all the time, from February, 1861, the date of the first lease, to the commencement of this suit in 1877, said Heinrich continued to pay rent at eighty and ninety dollars per year to...