Gaines v. Saunders

• Decision Date: 31 October 1885
• Citation: Gaines v. Saunders, 87 Mo. 557 (Mo. 1885)
• Parties: GAINES et al., Appellants, v. SAUNDERS et al.
• Court: Missouri Supreme Court

87 Mo. 557

GAINES et al., Appellants,

v.SAUNDERS et al.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Caldwell Circuit Court.--HON. JAMES M. DAVIS, Judge.

REVERSED.

H. C. McDougal for appellants.

(1) After the sheriff's sale his patents and deed could give John Middaugh no color of title.Hunter v. Ayres, 15 B. Monroe, 210;Mylar v. Hughes,60 Mo. 111.Although an owner of real estate may suffer it to remain unoccupied for any number of years, yet his title draws with it the possession until the adverse possession begins.Douthitt v. Stinson,63 Mo. 275;Turner v. Baker,64 Mo. 218.(2)The court erred in refusing plaintiffs' offer to prove that the land had been assessed to and in the name of William Middaugh from 1865 to date.Turner v. Hall,60 Mo. 271;Clement v. Perry,34 Ia. 564;Washburn v. Potter,17 Minn. 364.(3)John Middaugh could not claim to hold under color of title beyond the limits of the patent which covered the particular forty acres on which he had placed the improvements.Nearhoff v. Addleman,31 Pa. St. 279;Mylar v. Hughes,60 Mo. 111.Color of title must be acquired and the possession taken in good faith, otherwise the statute of limitations is no bar or defence against the legal title or possession.Hamilton v. Boggess,63 Mo. 233;Crispen v. Hannovan,50 Mo. 536;Mattison v. Ausmuss,50 Mo. 551;Mylar v. Hughes,60 Mo. 105;Larrimore v. Minot,43 Ga. 282;Livingston v. The Peru, etc., Co.,9 Wend. 511;Ware v. Johnson,55 Mo. 504;Saxton v. Hunt,20 N. J. Law, 487;Richardson v. Talman,44 Mich. 379;Harrold v. Bacon,36 Mich. 1.

Ramey & Brown and J. F. Harwood for respondents.

(1) The question of the good faith of John Middaugh was a question of fact and was found by the trial court in favor of defendants and will not be re-opened here.Hamilton v. Boggess,63 Mo. 233.(2)The ruling of the court in refusing the proof that the land had been assessed to William Middaugh could not have prejudiced plaintiffs.Besides the assessment of taxes could have nothing to do with the only two questions involved, viz: color of title and statute of limitations.(3) The patents and deed gave John Middaugh color of title.Wright v. Mattison,18 How. 56;Bernal v. Glenn,33 Cal. 676;McCall v. Neely,3 Watts, 72;Abbercrombe v. Baldwin,15 Ala. 372.When a party is in possession under circumstances which of themselves show the character and extent of his entry and claim, such facts, whatever they may be in a given case, perform sufficiently the office of color of title.They evidence the character of the entry and the extent of the claim, and no color of title does more.Rannels v. Rannels,52 Mo. 108, 113;Vancleve v. Milliken,13 Ind. 105;Bell v. Longworth,6 Ind. 273;McCall v. Neely, 3 Watts (Pa.) 69;Crispen v. Hannovan et al.,50 Mo. 536;Hughes v. Israel,73 Mo. 538;Hamilton v. Boggess,63 Mo. 233;Fugate v. Pierce,49 Mo. 441.

NORTON, J.

This suit is by ejectment to recover the possession of three hundred and sixty acres of land in Caldwell county.The answer is a general denial and also sets up the statute of limitations as a bar to plaintiffs' action.The trial was had before the court without the intervention of a jury, and resulted in a judgment for defendants, from which plaintiffs have appealed to this court.It appears from the record that John Middaugh had acquired title to the land in dispute in 1853 and 1855, by virtue of patents issued to him by the United States and by virtue of a deed from Reed, another patentee.That in 1859 and 1860 a number of judgments were rendered against said Middaugh by the circuit court of Caldwell county, upon which executions were issued in 1863, which were levied on the land in controversy, and it was sold to one Smith Adams who received a sheriff's deed therefor in 1864; that in 1865 Adams sold and conveyed the land to William Middaugh; that William Middaugh in 1868 conveyed the land to one Baubie in trust to secure the payment of certain notes therein described; that in 1878 this deed of trust was foreclosed, the land was sold and conveyed to one Armstrong Beattie, the ancestor of the plaintiffs in this suit.The various deeds above referred to put the title in plaintiffs, and to overthrow their title the defendants put in evidence, which tended to show that in 1868, and after the sale by the sheriff to Adams, and the execution of the deed by Adams to William Middaugh, that John Middaugh was advised by Loan and Bassett, two attorneys at law, that the sale and deed made by the sheriff to Adams did not affect his title, and thereafter set up claim to the land, which was then wild and uncultivated, and in May, 1869, built a frame dwelling house on forty acres of the land in dispute, and during the summer enclosed a yard around the house and in 1870 or 1871 enclosed about thirty-five acres of the same forty; that this was all the land enclosed; that said John Middaugh continually occupied the said house and enclosure, and continually claimed and exercised over all the land in controversy the usual acts of ownership from the date of his entry in May, 1868, claiming that the sheriff's deed was void, until he conveyed the same to defendant, Rogers, in 1878, who thereafter continued such claim and possession; that during all this time William Middaughwell knew of such claim and possession and that the possession was open, notorious and exclusive.

Evidence was offered by plaintiffs in rebuttal tending to prove that the possession of John Middaugh had not been continuous; that William Middaugh, after his purchase from Adams, claimed the lands; that John Middaugh had full knowledge of such claim, and resisted the same.Plaintiffs also offered to show that the land in controversy had always, from 1865, been assessed for taxes in the name of William Middaugh, which evidence the court excluded on defendants' objection.This action of the court is assigned for error.Evidence was also offered tending to show that in a proceeding in bankruptcy John Middaugh disclaimed having any claim or interest in the land, and that he also in a suit instituted by the material man who furnished the lumber to build the house erected by said John, disclaimed title to the land.There was also evidence showing that in 1871William Middaugh mortgaged the land in dispute to defendant, Rogers, to secure a debt due him from said William.

The court, after instructing that the various deeds put in evidence in chief by plaintiffs invested them with title, and that they were entitled to recover, unless defeated by adverse possession of John Middaugh and defendant, Rogers, gave for plaintiffs, among other instructions not necessary to be noticed, the following instruction, viz:

“4.The plaintiffs having the legal title, the legal seisin and possession followed the title, and defendant, Jarvis S. Rogers, setting up an adverse possession against such legal seisin and possession based upon the proof of his own possession tacked to that of John Middaugh, commencing May, 1869, must show to the satisfaction of the court that John Middaugh had color of title to the land in controversy at the time of his entry in May, 1869, that he entered and occupied said lands in in good faith, claiming the whole tract, relying on his color of title as being the legal...