Fulkerson v. Mitchell

• Decision Date: 30 April 1884
• Citation: 82 Mo. 13
• Parties: FULKERSON et al., Appellants, v. MITCHELL et al.
• Court: Missouri Supreme Court

82 Mo. 13

FULKERSON et al., Appellants,

v.MITCHELL et al.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Johnson Circuit Court.--HON. A. W. ROGERS, Special Judge.

AFFIRMED.

S. P. Sparks for appellants.

The decision of the court is in conflict with the case of Swartz v. Chappell, 19 Mo. 304. The court should have sustained plaintiffs' motion to strike out parts of the answer. This court cannot assume that the refusal of the court to sustain the motion to strike out was harmless error. Yelverton v. State, 40 Mich. 540; Holmes v. Doane, 9 Cush. 135; Gill v. Read, 5 R. I. 343; Wiseman v. McNally, 25 Cal. 234; Boyden v. Moon, 5 Mass. 365; Kenyon v. Rastall, 4 T. R. 753; Penn. v. Zebee, 23 Pa. 323; Calcraft v. Gibbs, 5 T. R. 19; Geer v. Archer, 2 Barb. 420.

John F. Philips with John J. Cockrell for respondents.

The court properly refused the third instruction asked by plaintiffs, it was unnecessarily cumulative. Miller v. Tilman, 61 Mo. 316; Martin v. Smylee, 55 Mo. 577; State v. Miller, 67 Mo. 604. It was also erroneous in being limited to a partial view of the facts and acts in evidence. Himes v. McKinney, 3 Mo. 382; I. M. Bank v. Murdock, 62 Mo. 70. From 1857 to 1870 the facts and acts in proof would authorize a jury to find an adverse possession in Cockrell. Ewing v. Burnett, 11 Pet. 52, 53; Draper v. Shoot, 25 Mo. 197; St. Louis Pub. School v. Risley, 40 Mo. 357; Wall v. Shindler, 47 Mo. 283, 284. On the whole record the finding of the court was for the right party, and was just such a conclusion as any court or jury would reach.

RAY, J.

This is an action of ejectment for the northwest quarter of the southwest quarter of section 10, township 46, range 27 in Johnson county, Missouri. The petition is in the usual form. Suit was brought May 7th, 1878, against defendant, Mitchell, alone. Afterwards Moses Keim, as landlord, on his on motion, was made codefendant with Mitchell, his tenant.

The substance of the amended answer upon which the case was tried is as follows: 1st, A general denial; 2nd, The statute of limitations; 3rd, It is then charged at length and in detail that J. M. Fulkerson, who is admitted to be the common source of title, in June, 1857, by way of exchange, sold and conveyed the land in controversy by deed in due form to one J. V. Cockrell who at the same time in exchange therefor sold and conveyed to said J. M. Fulkerson the southeast quarter of the northwest quarter of same section, township and range; that in May, 1858 said Cockrell, for a valuable consideration, sold and conveyed the land in suit to one Josiah Keim, who in April, 1865, for like consideration, sold and conveyed the same to the defendant Moses Keim; that all these several deeds were duly recorded, except the deed from J. M. Fulkerson to J. V. Cockrell which together with the house of said Cockrell in 1862, was burnt up and destroyed and never recorded; that at the date of the several deeds the grantees therein respectively took possession of said land, paid the taxes thereon, did various acts of ownership and possession in and upon said land, such as digging ditches, mowing grass, grazing stock, having the same surveyed and establishing its corners, selecting building sites, hauling and depositing rails thereon for fencing the same, and during their several ownerships and possessions, openly, notoriously and continuously claimed and asserted title to the same from the time of the first purchase or exchange down to the present; that said J. M. Fulkerson had notice of all said purchases, of the possession, acts of ownership, claim and assertion of title of all of said occupants as they severally occurred; that in May, 1878, the said J. M. Fulkerson, who is the father of the plaintiffs, without any consideration therefor, made to said plaintiffs a voluntary conveyance of said land; that said plaintiffs are not purchasers for value, are mere volunteers and had notice of all said deeds, purchases, possessions, acts of ownership, claim and assertion of title of all said parties, including the unrecorded deed of their father to said Cockrell, at and before the making and delivery of the deed from their father to them, etc.

The plaintiffs moved to strike out of said answer all that part contained in the third part thereof as above set out for the reasons; 1st, That the matters and things therein stated constitute no other or different defense than that contained in defendants first defense set up; 2nd, That the relief therein asked, the answer shows defendants are not entitled to. This motion was overruled by the court, and plaintiffs excepted. The reply was a general denial of the new matter set up in the answer.

By agreement of parties, the cause was tried before A. W. Rogers, special judge, without a jury. On the trial, as appears by the bill of exceptions, the plaintiffs to sustain the issues on their side offered and read in evidence a deed for said land from their father, J. M. Fulkerson, and wife to them. It was then admitted that J. M. Fulkerson was the common source of title, and the plaintiffs rested. The defendants to sustain the issues on their part thereupon introduced a large mass of evidence consisting of depositions, oral testimony of witnesses, deeds, etc. Of this evidence it is sufficient for the purpose of this case to state that it tended very strongly, we think, to show the execution and delivery of the unrecorded deed for said land from J. M. Fulkerson to said Cockrell, and its probable loss and destruction as charged in the answer. It, also, tended to show that the deed under which plaintiffs claim the land was a voluntary deed on the part of the father to the sons, and without any consideration paid therefor by the sons. In deed, the father in his testimony on this point uses this language: “My object in conveying it to plaintiffs was to let them have it. I am getting old and feeble, and I thought they were young and could attend to the suit for recovering it better than myself.” This evidence further tends to show various acts of ownership and some acts of possession done upon and about said land by Cockrell and those claiming under him, such as paying the taxes, digging ditches, depositing rails, cutting hay, grazing stock, surveying the same and establishing its corners, as well as claiming and asserting title to the same continuously and openly from the date of the purchase by Cockrell to that of the institution of this suit. This testimony however, discloses the fact that no inclosures or buildings were ever actually placed or built around or upon the land and that no part of it was ever put in cultivation, that no plowing was done thereon, except the furrow or ditch that was plowed or dug along the east side thereof to separate the same from the land of said J. M. Fulkerson.

On the other hand, the plaintiffs in rebuttal introduced a large amount of testimony tending to show that no deed whatever for said land was ever made by J. M. Fulkerson to said Cockrell. This testimony, also, tended to show that said J. M. Fulkerson claimed and asserted title to said land, that he cut grass and grazed stock on the same, and further that said tract of land during all the time was in a wild state and entirely without any actual possession, improvements, fencing, buildings or cultivation of any sort. On most all the material points, the evidence on both sides was contradictory and conflicting. At the close of the testimony the plaintiffs asked the court to declare the law as follows, to-wit:

1. The court declares the law to be that it is admitted by the pleadings and evidence in this case that J. M. Fulkerson, the grantor of plaintiffs, is the common source of title and that so long as such legal title remained in said Fulkerson, such title drew to it the seizin or possession in law, and although the court may find that one J. V. Cockrell on the 25th day of May, 1858, executed, acknowledged and delivered to defendant's predecessor and grantor, Josiah Keim, a deed for the land in controversy; that the execution and delivery of such deed did not operate to give said Keim the possession of said premises unless the said J. V. Cockrell had the legal title thereto, or was in the actual possession thereof, and that in order to disseize the true owner of said premises it required an entry upon said premises and actual occupation of some part thereof, or the doing acts on and respecting said land with the knowledge of the true owner, hostile to his title and his acquiescence therein.

2. The court declares the law to be that defense of the statute of limitations is one in derogation of right, and is not to be made out by inference, but only by the strictest proof, and before it can sustain such defense against the action of plaintiffs in this case, it must find that the defendants and those under whom they claim have had and held, not only an open, visible, notorious and adverse possession, but also a continuous possession for the statutory period of ten years at some time before the commencement of plaintiffs' suit, and if the court should find from...