Gray v. Givens

• Decision Date: 31 January 1858
• Citation: 26 Mo. 291
• Parties: GRAY et al., Defendants in Error, v. GIVENS, Plaintiff in Error.
• Court: Missouri Supreme Court

26 Mo. 291

GRAY et al., Defendants in Error,

v.GIVENS, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1858.

1. Where it appears from the “list of patent certificates prepared for issue by the recorder of land titles, under the act of Congress of February 17, 1815, (and supplementary acts) for the relief of those inhabitants of the county of New Madrid who suffered by earthquakes,” that the recorder had prepared a patent certificate for issue to a New Madrid claimant, it will be presumed that a plat of survey of the land upon which the New Madrid certificate had been located had been previously returned to the recorder.

2. As a general rule the statute of limitations will commence running in favor of an adverse possession from the date of the accrual of a right to dispossess by action the adverse possessor.

3. An action in the nature of an action of ejectment may be maintained in this state on a New Madrid location. (R. C. 1855, p. 690.)

4. The statute of limitations commences running against one claiming title under a New Madrid location from the date of the return of a plat of the survey of the land, upon which the location had been made, to the recorder of land titles.

5. It is competent for the general assembly to authorize actions of ejectment to be maintained on New Madrid locations, and the statute of limitations to run against New Madrid locators, previous to the issuing of patents by the United States; to do so is no interference “with the primary disposal of the soil by the United States.”

6. In an action in the nature of ejectment, although the plaintiff claims the whole, he may recover an undivided part.

7. If he show himself entitled to an undivided interest in the premises in controversy, he can recover only such undivided interest, although the defendant should be a stranger to the plaintiff's title; he will hold the moiety recovered in common with the defendant.

Error to Cooper Circuit Court.

This was an action in the nature of an action of ejectment to recover possession of a part--to-wit, north-west quarter and the south-west quarter--of section 9, in township 48, of range 16, in the county of Cooper. Plaintiffs claim title under a New Madrid location as the legal representatives of William Cox. Said Cox possessed a “head-right” in the county of New Madrid, which was afterwards confirmed by act of Congress. This “head-right” in 1805 he conveyed to Edward Robertson, sr. Edward Robertson, sr., conveyed a portion of this “head-right”--300 arpens--to his son, Edward Robertson, jr., who took possession. After the confirmation to Cox, he and his wife, at the request of Edward Robertson, sr., conveyed the said 300 arpens to Edward Robertson, jr.; who afterwards conveyed the same to John C. Gray, sr., the ancestor of plaintiffs. These conveyances were made before the New Madrid certificate issued. There was evidence tending to show that two hundred arpens more of said “head-right” was held by John C. Gray by direct purchase from Edward Robertson, sr. The deed was lost or mislaid. The New Madrid certificate--No. 453--was issued October 6, 1818, and was located the same day on the section in controversy. The patent to William Cox, or his legal representatives, was issued in 1855.

The defendant relied on the statute of limitations; and for the purpose of making out his defence offered in evidence a tax deed to one Kavenaugh, and offered to show that Kavenaugh and those holding under him had been in adverse possession for more than twenty years before the commencement of this suit. The court excluded the testimony.

The court, at the instance of plaintiffs, gave the following instructions to the jury: “If the jury believe from the evidence that the plaintiffs were legally entitled to the possession of the land in controversy or of any part thereof at the commencement of this suit, then they must find their verdict for the plaintiffs. 2. If the jury believe from the evidence that Edward Robertson, sr., before the New Madrid certificate was issued to William Cox or his legal representatives, sold to his son, Edward Robertson, jr., 300 arpens of said Cox's “head-right,” and that his son took possession of the same, and afterwards and before the issuing of said New Madrid certificate, that said William Cox and his wife, at the request of said Edward Robertson, sr., made the deed, read in evidence, to said Edward Robertson, jr., for said 300 arpens, and that the said Edward Robertson, jr., afterwards made the deed, read in evidence, for said 300 arpens to John C. Gray, deceased, in his lifetime, then the ownership was thereby vested in John C. Gray; and if the jury further find that, after so becoming the owner of said 300 arpens, the said John C. Gray departed this life leaving the plaintiffs his heirs at law, as stated by Susan Gray in her deposition, then the plaintiffs thereby became and are legal representatives of William Cox within the meaning of the patent from the United States read in evidence, and as such are legally entitled to recover the possession of the land in controversy from the defendant. 3. If the jury find from the evidence that William Cox conveyed his ‘head-right’ to Edward Robertson, sr., before the New Madrid certificate was issued to said Cox or his legal representatives, and that said Robertson, before said New Madrid certificate was issued, sold and conveyed 200 arpens of said ‘head-right’ to John C. Gray in his lifetime, then the ownership of said 200 arpens was thereby vested in said John C. Gray; and if the jury find that the said John C. Gray, so being the owner of said 200 arpens, afterwards departed this life leaving the plaintiffs his heirs at law, as stated by Susan Gray in her deposition, then the plaintiffs are legal representatives of William Cox within the meaning of the patent from the United States in evidence, and as such they are legally entitled to the possession of the land in controversy, and are entitled to recover the possession thereof from the defendant.”

The defendant prayed the court to give the following instructions: “1. The certificate of new location issued by the recorder of land titles at St. Louis, in the year 1818, in the name of William Cox or his legal representatives, and the patent issued by the United States thereon in the name of said Cox or his legal representatives, dated____, 1855, both of which have been read to the jury by plaintiffs, are no evidence that John C. Gray, sr., the ancestor of plaintiffs, and through whom they claim title to the land in controversy, was the owner of the ‘head-right’ or the legal representative of said Cox. 2. If the jury believe from the evidence that William Cox in the year 1805, by deed of that date, conveyed to Edward Robertson, sr., his whole ‘head-right,’ situate in the county of New Madrid, and in lieu of which the land in controversy was located; and further find that John C. Gray, sr., did not, subsequently to said deed of 1805, by direct or mesne legal conveyances from said Edward Robertson, sr., derive title to said ‘head-right,’ then said Edward Robertson, sr., was the legal representative of said William Cox, and the jury must find for the defendant. 3. The deed executed by William Cox and wife on the 31st day of December, 1813, to Edward Robertson, jr., for the quantity of 300 arpens of the ‘head-right’ conveyed in 1805 by said Cox to Edward Robertson, sr., and which was read to the jury by plaintiffs, is no evidence of a conveyance from Edward Robertson, sr., to Edward Robertson, jr., of 300 arpens of said head-right; and the jury are to disregard said deed in making their verdict. 4. Oral evidence can not be substituted for any instrument which the law requires to be in writing. The jury will therefore exclude from their consideration all admissions proved to have been made by Edward Robertson, sr., of having conveyed his right to the Cox head-right. 5. If the jury believe from the evidence that Cox's original head-right was one thousand arpens, and that the plaintiffs have shown themselves entitled to any part of the head-right, their interest in the new location is in the same proportion as it was in the head-right, and they can only recover from Givens such proportion of the amount he holds as the amount he holds bears to the 640 acres on the new location. 6. The plaintiffs in this case must recover upon the strength of their own title and not upon the weakness of the adversary. 7. If the jury believe from the evidence that William Cox, in 1805, conveyed his head-right to Edward Robertson, sr., it rests upon the plaintiffs to deduce their title from Robertson, sr., in writing; and if they have failed to do so, the jury must find for defendant. 8. The jury can not, in this case, find any thing for rents or for waste and injury.”

Of these instructions asked the court gave the 1st and 6th, they not being objected to by plaintiffs, and refused the others. Exceptions were duly taken. The jury found a verdict for plaintiffs.

Morrow, for plaintiffs in error.

I. All the parties in interest ought to have joined in the suit, and not having done so, the first instruction asked by plaintiff in error ought to have been given. (Sess. Acts, 1849, p. 75-6, sec. 1-7.)

II. The court below erred in refusing to receive the proof offered by plaintiff as to his possession of more than twenty years of the premises in question, and in allowing the evidence to go to the jury in relation to conveyance by Edward Robertson.

III. The statute of limitations begins to run from the moment the right of entry accrues, and a subsequent issuance of a patent will not abrogate or repeal our statute of limitation. (Rector v. Walsh, 1 Mo. 238; Hunter v. Kemphill, 6 Mo. 106.) A party claiming under a New Madrid certificate had a right to enter the moment his location was made and completed according to the laws of the United States, without waiting for a patent; and, having a right of entry, had a right to sue, and,...