Hamilton v. Boggess

Decision Date31 October 1876
PartiesCHARLES HAMILTON, Respondent, v. R. O. BOGGESS, Appellant.
CourtMissouri Supreme Court

Appeal from Jackson County Circuit Court.

Gage & Ladd, for Appellant.

I. The instrument from the sheriff to Wilson, being without seal, was inoperative at law; and it could convey no other than a legal title. Hence, its record imparted no notice. (Wagn Stat. 277, § 24; Keach vs. Kœnig, 55 Mo. 453; Moreau vs. Detchemendy, 18 Mo. 522; Allen vs. Moss, 27 Mo. 354; Moreau vs. Branham, 27 Mo. 351; Ware vs. Johnson, 55 Mo. 500.)

If the appellant cannot be charged with notice of the sheriff's deed, then the record of the deed from Wilson to Hamilton would affect no one with notice, such deed not being in the line of the title.

II. Admitting that the deed from Wilson to Hamilton did constitute color of title, his adverse possession under it was not such as to give him the title. Such possession must be adverse to the true owner, and not subservient to him; and when one entering under the rightful owner wishes to change the character of his possession from a friendly to a hostile one, he must bring notice of such change directly to the owner. And the adverse holding does not begin till then. (Zeller's Lessee vs. Eckert, 4 How. 289; Willison vs. Watkins, 3 Pet. 43; Rigg vs. Cook, 4 Gilm. 351; Genin vs. Ingersoll, 2 W. Va. 558; Clarke vs. McClure, 10 Grat. 305; Kirk vs. Smith, 9 Wheat. 288; Tyl. Ej. 876; Ang. Lim. § 384.)

Respondent's possession did not become adverse from the time of recording the deed from Wilson. That was at best constructive notice, and was insufficient. (Morey vs. Staley, 54 Mo. 422.)

Even if plaintiff's possession did become adverse in 1855, he has not shown ten years' continuous possession from that time. In September, 1863, he left, in pursuance of Gen. Ewing's order, and neither he nor any one else for him, ever resumed possession. But admitting that some one went on for him in 1866, the continuity of his possession was broken by a lapse of two or three years; and such continuity the law insists on as indispensable to a successful attempt, on the part of a squatter by simple possession, to nullify and destroy the title of the real owner.

There is no evidence of an abandonment of his property by Hugh Hamilton. The evidence shows the contrary. Plaintiff himself testified that he was, at the time of the execution sale, holding under and for his son, and by his son's consent. The son had left it in charge of a tenant, and plaintiff says, that, up to the time of the sale, he attended to tax paying for his son. The mere fact that Hugh had gone away, not expecting to return, amounts to nothing. He could not very well take his land with him.

Admitting that plaintiff had held adverse possession of a part for ten years, that was only twelve or fourteen acres. The remainder of lot 5 was never cultivated or inclosed, and no part whatever of lot 4. He had held such possession as the law requires, of the twelve acres, under color of title which would extend his constructive possession. And his possession would not, even by construction, cover any part of lot 4; that was a separate tract, wholly distinct from lot 5, a legal subdivision of itself.

III. Wilson's deed to plaintiff was a simple quit-claim of the interest derived by the sheriff's deed of March 1853, which was nothing. And when he afterwards obtained from Sheriff Briant a deed to the property, he was, or would have been, if appellant's title had not intervened, the owner of the property. The rights acquired by Wilson, by virtue of the deed of 1871, did not inure to the benefit of this respondent. (Butcher vs. Rogers, 60 Mo. 138.) And on the case, as the respondent made it himself, Wilson was the owner of the property, and respondent ought to have been turned out of court. He showed an outstanding title in Wilson.

IV. The appellant is a purchaser of this land for value, and has occupied it when there were no indications of the occupancy of any portion of it, with no knowledge or suspicion of any claim in Wilson or the respondent, and has made valuable improvements.

A. Comingo, for Respondent.

I. The sheriff's deed to Wilson, although without seal, and Wilson's deed to the plaintiff below, were properly admitted. They show color of title.

II. The deed from the sheriff to Wilson was recorded October 7th, 1853; that from Wilson to plaintiff the 13th of April, 1855, the former twenty, the latter eighteen years, before it was offered in evidence, and plaintiff had claimed and enjoyed the land from the date of the sale by the sheriff, the 6th of October, 1852. Hence, these instruments were properly admitted in evidence for the purpose of showing color of title and also notice to defendant. (Musick vs. Barney, 49 Mo. 458; Maupin vs. Emmons, 47 Mo. 304; Wagn. Stat. p. 596, § 40, construed in connection with p. 595, § 35.)

III. The court did not err in its declaration of law. The facts as found, and as plainly shown by the record, disclose an unquestionable color of title, and open, notorious and uninterrupted possession, for more than ten years, of a part of the premises, claiming the whole adversely to all other claimants. (Tyl. Eject. 860-863; United States vs. Arredondo, 6 Pet. 743; Clark vs. Courtney, 5 Pet. 354; LaFombois vs. Jackson, 8 Cow. 589; Gittens vs. Lowry, 15 Ga. 336; McCall vs. Neely, 3 Watts. 72; Jackson vs. Whitbeck, 6 Cow. 632; Ang. Lim. (4 Ed.) §§ 404, 405; Rannells vs. Rannells, 52 Mo. 108; Washb. Real Pr. pp. 499, 500; Jackson vs. Rightmyer, 16 John. 314; Smith vs. Lorillard, 10 Id. 338.)

The fourth and fifth instructions, refused the defendant, declare in effect that the deeds from the sheriff to Wilson and from the latter to plaintiff, are void, and give no color of title. They were properly refused. (See Rannells vs. Rannells, and authorities, supra.)

The sixth instruction, refused defendant, declares that plaintiff cannot recover any part of lot 4, even conceding that he held a portion of lot 5, as claimed--a proposition that cannot be successfully maintained. (Ang. Lim. [4th Ed.] §§ 400, 401, and authorities cited; 2 Washb. Real Pr. [2nd Ed.] p. 508, § 36; Heiser vs. Richel, 7 Watts. 35.)

The ninth instruction was properly refused. It declares that plaintiff is not in any event entitled to recover more than he actually occupied adversely.

The eleventh instruction, which declares that if plaintiff's possession was in the beginning with the consent of and under Hugh Hamilton, the plaintiff must show actual notice of his adverse claim “brought home” to the latter, and ten years adverse possession thereafter, is not warranted by the facts. Hugh Hamilton had abandoned his land to his creditors and abandoned his residence in the State. He felt no concern about his property, as he never paid any attention to it after he left the State, and the acts of plaintiff appear to have been voluntary or not performed at the request of the son.

Hugh's abandonment, the occupation of the land by plaintiff after it was sold by the sheriff to Wilson, claiming it as his own against all the world, the payment of the taxes, payment of the purchase money to Wilson, and the recording of the deed from Wilson, are acts that unmistakably indicate plaintiff's adverse claim. (Draper vs. Shoot, 25 Mo. 197; Warfield vs. Lindell, 30 Mo. 272, and 38 Id. 561.)

The twelfth instruction declares in effect that if plaintiff quit the possession of the premises, in obedience to order No. 11, he cannot recover unless there were ten years of adverse possession, open, notorious, etc., exclusive of the time they were vacated by him in consequence of said order. As this military order was imperative, there was a compulsory break of about two and a half years in his possession. The instruction was therefore properly refused. (Fugate vs. Pierce, 49 Mo. 441; McLaren vs. Murphy, 19 Up. Can. 609; Jackson vs. Rightmyer, 16 John. 314; Smith vs. Lorillard 10 Id. 338; Den vs. Morris, 2 Halst. [N. J.] 6.)

NAPTON, Judge, delivered the opinion of the court.

This is an action of ejectment for lots 4 and 5 of the north-west quarter of section three, township 44, range 33, in Cass County, begun 16th September, 1869.

The oral testimony in this case, as reported in the bill of exceptions, does not explain as clearly as it might have done some material facts touching the locality of the land in dispute and its partial occupancy subsequent to its abandonment in 1863.

As far, however, as I have been able to gather the facts from rather confused and occasionally contradictory statements of witnesses, they appear to be about as follows:

Charles Hamilton, the plaintiff, resided on a farm in Cass County, and adjoining it on the south-west, his son Hugh owned two lots in the northwest quarter of section 3 (being the land in controversy) called Nos. four and five, containing together about one hundred and fifty-nine acres. It does not appear that the son ever had any part of these lots inclosed. He left this State for California in 1849 and has never returned.

At the time Hugh Hamilton left for California, he was largely in debt, and according to the testimony of his father had no intention of returning, but abandoned his property here, which apparently consisted of several other tracts of land besides the one now in dispute, to his creditors. The fact that he left and never returned is undisputed. That he abandoned his property here to his creditors and never intended to return, is an inference which the court below drew from the evidence.

In 1849, Wilson and Parker obtained a judgment against Hugh Hamilton, upon which an execution issued which was levied on the lots four and five, and in 1852, on a sale under this execution, Wilson, one of the judgment creditors, became the purchaser, having previously seen the plaintiff and made an arrangement with him to let him have the land on payment of $450, which sum was sent by plaintiff to Wilson on the day of the sale.

The plaintiff at this...

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