Hannibal & St. Joseph R.R. Co. v. Clark

• Decision Date: 31 October 1878
• Citation: 68 Mo. 371
• Parties: THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant. v. CLARK.
• Court: Missouri Supreme Court

68 Mo. 371

THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

v.CLARK.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Monroe Circuit Court.--HON. JOHN T. REDD, Judge.

Geo. W. Easley for appellant.

1. James Clark's declarations should have been excluded, because made in reference to his title and not his possession. Darrett v. Donnelly, 38 Mo. 492; McBride v. Thompson, 8 Ala. 650; Maus v. Sturtevant, 23 Ala. (N. S.) 664.

2. The letter and proofs in the pre-emption proceeding should have been admitted for the purpose of showing the character of Clark's possession; they would have shown that the land was not subject to pre-emption. Peas v. Lawson, 33 Mo. 35.

3. The certificate of the entry by Clark, under the homestead act, was not color of title, because the land was not subject to entry under that act. It was an alternate section to those granted to the State to aid in building the appellant's road, under 10 U. S. Stat. at Large, p. 9, § 2, and afterwards selected by the State in lieu of other lands. 5 U. S. Stat. at Large, p. 455, § 10. To constitute color of title, there must be nothing on the paper, or in the transaction, to show that it is illegal or prohibited by law, because, if such should appear, it would charge the party with notice of the defect, and render his claim mala fide. Blackwell on Tax Titles, 567; Bowman v. Wettig, 39 Ill. 416; Swope v. Saine, 1 Dill. C. C. 416; Moore v. Brown, 11 How. 414.

4. If the certificate of entry was color of title when issued, it ceased to be such when cancelled. The color of title and the possession must concur for the full period of the statute. Blackwell on Tax Titles, (4 Ed.) 650; McIver v. Rayan, 2 Wheat. 29; Livingston v. Peru Iron Co., 9 Wend. 511; Sydnor v. Palmer, 29 Wis. 226; Jackson v. Thomas, 16 Johns. 293. Although Clark's possession may have been adverse as to the whole tract, as its inception, yet the character of the first possession was changed by the cancellation of his certificate of entry, and that cancellation ought to have been considered as denoting quo animo the possession of the portion outside his inclosure was held by him.

5. The respondent should have been confined to the pedis possessio of James Clark. St. Louis v. Gorman, 29 Mo. 593; DeGraw v. Taylor, 37 Mo. 310.

Wm. J. Howell for respondent.

NORTON, J.

This is an action of ejectment, commenced on the 23rd day of April, 1872, in the circuit court of Monroe county, for the recovery of the northeast qr. of section 27, township 54, range 8. The petition is in the usual form. The answer admits possession, denies plaintiff's right thereto, and sets up the statute of limitations as a bar to plaintiff's right of action. The plea of the statute was put in issue by replication, and the cause was tried at the April term, 1876, of said court, and after the evidence was heard and instructions given, plaintiff took a non-suit with leave to move to set the same aside, which motion having been made and overruled, the cause is brought here by appeal.

Plaintiff derived title to said land under act of Congress, approved June 10th, 1852, granting lands to the State to aid in the construction of certain railroads; also under an act of Congress of August 3rd, 1854, and an act of the General Assembly of the State accepting the grant, and applying a portion of the lands thus granted to the Hannibal & St. Joseph Railroad Company. In support of its title, plaintiff offered the same evidence which was offered in the case of the Hannibal & St. Jo. R. R. Co. v. Smith, 41 Mo. 310.

The defendant, in support of his title, offered evidence subsequently as follows: That on the 9th day of January, 1855, James Clark entered the land in controversy at the United States land office in Palmyra, and received therefor a certificate of entry No. 31,826; that, immediately thereafter, he went into actual possession and fenced about ten acres, and in the spring following inclosed twenty-five or thirty acres more by fencing it, and remained in the actual possession thereof till his death, which occurred in February, 1862; that after the death of said James Clark, defendant, as his administrator, immediately took possession and has remained in possession ever since, and, in 1869 and 1870 inclosed the whole of said land; that in 1858 said Clark sent his certificate of entry to Washington City to L. L. Anderson, to procure his patent, who sent it to the land office, and was informed that the entry had been canceled; that the certificate of entry was lost; that the taxes on said land were paid by said James Clark up to the time of his death, and since that time have been paid by defendant.

1 EVID ENCE: declarations.

During the progress of the trial a witness was asked if he ever heard James Clark say how he claimed title to the land, and was permitted to answer the question over the objection of plaintiff, and said “that he claimed this land by entering it and paying taxes on it. I have heard him speak of it as his own. He claimed it by going to the land office, by getting the certificate and paying his money for it.” The declaration of one in possession of property explanatory of his possession, as that he held in his own right, or as tenant or trustee, is admissible for that purpose, but his declarations in regard to the contract by which he came into possession, are not receivable in his favor. Darrett v. Donnelly, 38 Mo. 492. Under this rule, so much of the answer of witness which stated that he heard his father claim the land as his own, was receivable. The remainder of his answer appears to be an affirmation of facts of which the witness himself was cognizant; for he had previously stated that he was with his father at the land office, that his father entered the land in his presence, paid his money for it, and got his certificate, and paid taxes on it up to the time of his death.

2. ______: ______: exclusion of, not ground for reversal, when.

The action of the court in sustaining the objection made to a certified copy of a letter from the commissioner of the general land office dated July 3rd, 1856, showing that James Clark's entry had been cancelled, and, also, the proofs made by Clark when he made the entry offered in evidence by the plaintiff, cannot be reviewed by us, because the exclusion of proper evidence is not assigned as error in the motion for a new trial. Although plaintiff excepted to the ruling of the court in excluding the evidence, he did not raise the objection on the motion for new trial. Brady v. Connelly, 52 Mo. 19.

The action of the court in giving and refusing instructions is also assigned for error. Plaintiff asked the following declarations: 1. The documentary evidence of title shows a complete title in the plaintiff, and the jury will find for plaintiff. 2. The certificate of entry to the land in controversy given by the register of lands at Palmyra, Missouri, to James Clark, shows no title in said Clark, and as a consequence, none in the defendant. 3. Said certificate of entry is not even color of title in said James Clark, or of defendant, who claims under him. 4. Even if said certificate of entry were color of title in said James Clark and the defendant claiming under him, still, if the jury believe from the evidence that the commissioner of the general land office of the United States, on the 31st day of July, 1856, cancelled said certificate, then said certificate no longer constituted color of title. 5. Under the pleadings and evidence in this case, the statute of limitations only ran against the...