Heinemann v. Bennett

• Decision Date: 20 April 1898
• Citation: 144 Mo. 113,45 S.W. 1092
• Parties: HEINEMANN et al. v. BENNETT et al.
• Court: Missouri Supreme Court

45 S.W. 1092

144 Mo. 113

HEINEMANN et al. v. BENNETT et al.

Supreme Court of Missouri, Division No. 2.

April 20, 1898.

ADVERSE POSSESSION — EVIDENCE — EXTENT.

Rev. St. 1889, § 6768, provides that possession under color of title of part of a tract of land in the name of the whole tract claimed, and exercising the usual acts of ownership over the entire tract, shall be deemed a possession of the whole tract. Held that, where H., the holder of a tax deed, made a contract with L., who was on a portion of the tract conveyed, to keep it fenced and use it until he wanted it, and to protect the timber on the whole tract, the actual possession of the part occupied by L. was the possession of H., so as to put the statute of limitations in motion, which, by the deed, was extended to the whole tract, and, upon its continuance for 10 years, would vest in him the legal title.

Appeal from circuit court, Franklin county; Rudolph Hirzel, Judge.

Ejectment by Catherine Heinemann and others against Phoebe E. Bennett and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

R. H. Stevens and C. F. Gallencamp, for appellants. D. C. Taylor and R. Lee Mudd, for respondents.

BURGESS, J.

This is ejectment for 80 acres of land in Franklin county. There was judgment in the court below in favor of plaintiffs for possession of the land, and $45 damages. After unsuccessful motion for a new trial, defendants appealed. The land in controversy is the N. ½ of the S. E. ¼ of section 25, township 44, range 2 E. The east 40 was patented by the United States government to James Caldwell on the 2d day of August, 1852, and the west 40 was patented by the United States government to Rapin Smithson on the 1st day of September, 1856. The land was sold for delinquent taxes by the collector of the revenue of Franklin county on the 4th day of June, 1867, at which said sale one Henry T. Mudd became the purchaser, and received the collector's certificate of purchase therefor, which he, on the 30th day of November, 1869, assigned to one John Heinemann, to whom said collector, on the 8th day of January, 1870, executed a deed to the land. When Heinemann got his deed from the collector in 1870, he had the land surveyed, and, finding that one Charles Lindner had a small portion of it fenced and in cultivation, he agreed with him that he might keep it fenced and use it until he (Heinemann) wanted it; and, in consideration that he would protect the timber on the land (which was all timbered), he gave him a roadway over it. Heinemann then went upon the land, and built a limekiln, in which he burned lime for two successive seasons, and cut timber from the land for the use of an adjoining farm, and also permitted others to cut timber from the land. The limekiln was built of rock on the top...