Ferguson v. Bartholomew

• Decision Date: 31 October 1877
• Citation: 67 Mo. 212
• Parties: FERGUSON v. BARTHOLOMEW, et al. Plaintiffs in Error.
• Court: Missouri Supreme Court

67 Mo. 212

FERGUSON

v.BARTHOLOMEW, et al. Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1877.

Error to Chariton Circuit Court--HON. G. D. BURGESS, Judge.

Waters & Winslow for plaintiffs in error.

1. The entries of Ferguson and his tenants, although made under the paramount title, stand on the same ground as though made by naked trespassers. Spalding v. Mayhall, 27 Mo. 377; Harris v. Turner, 46 Mo. 438; Robinson v. Walker, 50 Mo. 19; Dilworth v. Fee, 52 Mo. 130.

2. The right of entry, upon lands held adversely, either as an extra judicial remedy to regain the possession, or as a means of arresting the statute of limitations, never obtained a foothold in this State. The early history of the Louisiana Territory, and the subsequent course of legislation and adjudication in the Missouri Territory and the State of Missouri, afford no countenance to the idea that the common law doctrine of entry came in with the act of January 19th, 1816, (1 Terr. Laws, p. 436,) adopting certain portions of the common law and the British Statutes, or with the subsequent limitation act of December 17th, 1818. (1 Terr. Laws, p. 598, § 1). The effect of the statute of forcible entry and detainer, passed August 19th, 1813, (1 Terr. Laws, p. 268,) was, alone, sufficient to prevent the introduction of common law entries either by the act of 1816 or 1818. Emerson v. Sturgeon, 59 Mo. 404; Lecompte v. Wash, 9 Mo. 547; Cathcart v. Walter, 14 Mo. 17; Dennison v. Smith, 26 Mo. 487; Wunsch v. Gretel, 26 Mo. 580.

3. Ferguson's last entry was made March, 1870, and his first action of ejectment was commenced September 1st, 1871. His entry, therefore, was of no avail, suit not having been commenced within the year.

4. Ferguson's entries, having been forcible, did not have the slightest effect upon the adverse possession o plaintiffs in error. They were promptly met by proceedings in forcible entry and detainer, under which possession was twice restored to plaintiffs in error; and the effect of these proceedings was to restore them to the possession, which, by relation, or the operation of a kind of jus postliminii under the statute, so to speak, revested in them as though they had never been driven out by the hostile force. These proceedings were acts of possession performed with reference to the land. Benest v. Pipon, 1 Knapp 70; 1 Domat's Civil Law, 889, Sec. 2234; Smith v. Lorillard, 10 Johns. 338, 351; Hamilton v. Boggess, 63 Mo. 247; 3 Blackst. Comm., p. 210; 4 Kent's Comm., p. 119; Waterman on Trespasses 873, § 931; 9 Bac. Abr. Tit. Trespass, C.; Morgan v. Varick, 8 Wend. 587; Robinson v. Walker, 50 Mo. 19; Pella v. Scholte, 24 Iowa 293; Doe v. Eslara, 11 Ala. 1028; Norvell v. Gray, 1 Swan (Tenn.) 96.

5. The deed from McKeen to Woods, being duly proven when recorded, is to be considered as a recorded deed since March 20th, 1868, when it was admitted to record. The deed from McKeen to Casey was not acknowledged or proven when it was recorded, and, therefore, had no right upon the record. The act of 1847, now W. S. 595, §§ 35, 36, did not include deeds to military bounty lands. Crispen v. Hannavan, 50 Mo. 415; Ryder v. Fash, 50 Mo. 476.

H. Lander for defendant in error.

1. The deed from McKeen to Casey, dated March 11th, 1822, and recorded April 2nd, 1842, it being at the time “neither proven nor acknowledged,” was duly recorded by operation of the 8th section of the act of February 2nd, 1847, now Sec. 35, p. 595, 1 Wag. Stat., and from the time of the passage of that act imparted notice. If it be said that this section does not apply, because the deed affects military bounty land, as to which another provision is made in the act concerning conveyances, (1 Wag. Stat., p. 278, §§ 35 to 38,) the answer is that this 35th section applies only to a class of deeds made in other States which have been acknowledged or proven according to the laws of the State where made. Tully v. Canfield, 60 Mo. 100; Totten v. James, 55 Mo. 496.

2. Ferguson's entries under his title, first in October, 1868, followed up by actual possession to March 29th, 1869, and again on the first of March, 1870, followed up to July 10th, 1871, certainly were sufficient to interrupt the statute of limitations. The entries were made animo clamandi, accompanied with absolute dominion and expulsion of his adversary. Ang. Lim. § 378; Altemas v. Campbell, 9 Watts 28.

3. No particular form is required in making an entry to stop the running of the statute of limitations. 1 Hilliard Real Prop., p. 42, (3rd Ed.); Woods v. Woods, Grant's Cases, (Penn.) 229; Robison v. Swett, 3 Greenleaf R. 324; Ang. Lim. § 386.

4. An entry, before the statute period has run, destroys the efficacy of all prior possessions, so that to gain a title under the statute, a new adverse possession for the full time must be had. Ang. Lim., § 413; Pederick v. Searle, 5 Serg. & R. 236.

5. Our statute recognizes entries to stop the running of the statute. 2 Wag. Stat., p. 916, § 2; Bradley v. West, 60 Mo. 33.

6. The adverse possession must be continuous, without entry, claim or action on the other side. Andrews v. Mulford, 1 Haywood 311; Park v. Cochran, 1 Haywood 178; Ang. Lim., § 413, (note 2.)

7. There can be but one seizen of land at the same time. Putnam v. Fisher, 34 Maine 172.

8. The complaint is that Ferguson entered violently and forcibly. Every actual entry implies a trespass. Coke Litt. 245, b.

HOUGH, J.

This was an action of ejectment, instituted on the 1st day of May, 1872, for military bounty lands lying in the county of Chariton, Mo., in which the plaintiff had judgment. The plaintiff and the defendant claim through a common source of title. The plaintiff claims title under a deed from the common grantor, dated March 11th, 1822, executed in the State of Tennessee, and recorded in Chariton county on the 2nd day of April, 1842. This deed when recorded, was neither proven nor acknowledged. Plaintiff connected himself with this conveyance by a regular chain of title papers, all of which were recorded April 2nd, 1842, except the deed to himself, which was recorded June 19th, 1848. The defendant claims under a deed executed, by the common grantor, on the 17th of November, 1821, with which he connected himself by a regular chain of conveyances, all of which were recorded March 20th, 1868. The defendant also relied on the limitation of two years applicable to suits for military bounty lands, and proved the following facts: “That, in the month of October, 1868, one Krassig took the possession of the land sued for, and built a house on it; that shortly afterwards and about the time the house was completed, the plaintiff took forcible possession of the house, and put his tenants in it; that Krassig took the possession, and built the house, under a contract for the purchase of the land, made with Lucius Salisbury, who is one of the grantors in defendant's chain of title; that some months after plaintiff took the possession of the premises from said Krassig, the said Krassig commenced suit against the tenants of said plaintiff, and on the 8th day of February, 1869, recovered judgment in forcible entry and detainer against them for said land, before a justice of the peace; that a writ of restitution was issued on said judgment, and was placed in the hands of the proper constable, who, on the 29th day of March, 1869, executed the same by putting the said Krassig in possession of the said premises; that, on the said day, the sale of said land by Salisbury to said Krassig was annulled, and the said Salisbury took the land back from said Krassig; that, on the said day the said Salisbury rented said premises to one Freeman, who went into the possession thereof, and remained until about the 1st day of March, 1870; that, about said time the plaintiff again took forcible possession of said premises, and put his tenants on the same; that, on the 14th day of April, 1870, the said Salisbury commenced a suit for forcible entry and detainer against Stephen Wilson et al., who were the tenants of plaintiff, before a justice of the peace, and, on the 8th day of September, 1870, recovered judgment for the possession of said premises; that defendants appealed from said judgment to the circuit court of Chariton county, Missouri, where, on the 23rd day of May, 1871, the said Salisbury again recovered judgment for the possession of said premises, and, on the 10th day of July, 1871, was put in the possession of said premises by a writ of restitution, issued on said judgment; and that said Salisbury and his grantee, Thomas, one of the defendants in this case, by themselves and tenants, have ever since held the possession of said premises, and made valuable improvements thereon.” It was admitted by the defendants, at the instance of the plaintiff, that the plaintiff commenced an action of ejectment, for the land in suit, in the Chariton court of common pleas, a court of competent jurisdiction, against the tenants of Salisbury, September 1st, 1871, which was continued until April 2nd, 1872, when plaintiff suffered a non-suit, and commenced this action May 1st, 1872.

1. MILITARY BOUNTY LANDS. recorded deed: notice.

Sections 35 to 38, inclusive, of chapter 109 of the General Statutes, in relation to conveyances, first enacted in 1843, provide, that every instrument of writing executed out of this State, and within the United States, which conveys or affects military bounty lands in this State, and which is acknowledged or proved according to the laws and usages of the place where executed, which has been filed for record and recorded in the proper office, although such filing or recording may not have been in accordance with any law in force, shall impart the same notice as if the acknowledgment or proof had been made in accordance with law; and that certified copies of such instruments, or of the record thereof, shall, upon proof of the loss or destruction of the original instrument,...