Hickman v. Link

• Decision Date: 04 February 1889
• Citation: 97 Mo. 482,10 S.W. 600
• Parties: HICKMAN v. LINK et al.
• Court: Missouri Supreme Court

10 S.W. 600

97 Mo. 482

HICKMAN v. LINK et al.

Supreme Court of Missouri.

February 4, 1889.

1. ADVERSE POSSESSION — ACTS OF OWNERSHIP — EVIDENCE.

Where a part of a single uninclosed tract is sold, and the grantee fails to pay the purchase price, and abandons possession and claim of right, the grantor's possession of the remainder of the tract, and his exercise of acts of ownership over the part sold, are constructive possession of that part, under Rev. St. Mo. 1879, § 3223, providing that the possession of a part of a tract or lot of land, in the name of the whole tract claimed, and exercising the usual acts of ownership over the whole tract, shall be deemed a possession of the whole.

2. SAME — EVIDENCE OF ABANDONMENT.

It is competent to show that before the grantee abandoned possession suits were prosecuted against both him and the grantee to recover the land, as showing a cause and reason for his abandonment, and refusal to pay the purchase price.

3. SAME — VACANT PROPERTY — ACTS OF OWNERSHIP.

The grantor's defense of possession, and assertion of title to the whole tract, in a suit by third persons claiming a superior title, is a sufficient act of ownership where the property is in a state of nature.

4. SAME — EVIDENCE — RECORDS OF FORMER SUIT.

The record of that suit in which the plaintiffs were nonsuited, while not color of title, is admissible to prove the required act of ownership.

5. HUSBAND AND WIFE — ADVERSE CLAIM TO WIFE'S LAND — PURCHASE BY HUSBAND.

The purchase by a husband of an adverse claim to his wife's lands, inures primarily to the benefit of her title, and to his benefit only so far as his marital interests are concerned.

6. SAME — DEFENSE IN EJECTMENT — GENERAL DENIAL.

In ejectment by one claiming under the purchase of such adverse title by the husband, the defense that his purchase inured to her benefit is available under a general denial.

7. ADVERSE POSSESSION — TACKING.

The possession of the widow before assignment of dower, and that of the deceased husband's heirs, may be tacked to complete the statutory period of limitation.

Appeal from circuit court, St. Louis county; W. W. EDWARDS, Judge.

Ejectment by Joshua Hickman against Mary I. Link and Martin Link. There was a trial to the court, who, at plaintiff's instance, gave the following instructions:

"(1) Plaintiff has shown a complete paper title to the land in controversy; and is entitled to recover, unless the defense set up [of title acquired by Ann McCourtney, under the statute of limitations] be sustained by the evidence.

"(2) There is no evidence that Ann McCourtney, in person or by tenant, ever had actual possession of any part of the 245 acres [embracing the land in controversy] conveyed by Martin McCourtney to Goodwin by deed in evidence, dated January 26, 1841.

"(3) There is no evidence that Ann McCourtney, in person or by tenant, had for ten consecutive years actual possession of any part of the 245 acres [embracing the land in controversy] which was conveyed to Goodwin by deed read in evidence, dated January 26, 1841.

"(4) The tract of 480 arpents conveyed to Martin McCourtney by the deed [in evidence] dated January 21, 1822, was, by operation of the deed [in evidence] dated January 26, 1841, subdivided into two several and separate tracts; and after such subdivision, even if the proceedings in the case of Walker et al. vs. Bacon et al. had given Ann McCourtney color of title to the original tract of 480 arpents, yet, in order to disseise the owner of the true legal title to the tract of 245 acres of his legal constructive possession thereof, it was essential that, under such color of title, Ann McCourtney should have made an entry upon, and taken actual possession of, some part or of the whole of such 245-acre tract; and, in order to make title thereto under the statute of limitation, it was further essential that she should have had such actual possession for ten consecutive years. And as there is no evidence that Ann McCourtney ever entered into or held the actual possession of said tract of 245 acres, or any part thereof, for ten years, or for any time, the evidence fails to sustain the claim of title set up by defendants, and the finding and judgment of the court must be for the plaintiff, whether Ann McCourtney had color of title to the 480 arpents or not.

"(5) There is no evidence of any actual or constructive disseisin by Ann McCourtney of plaintiff (or any under whom his paper title is derived) of the whole or any part of the land in controversy; and therefore the defendants have failed to sustain their defense of title acquired by Ann McCourtney, under the statute of limitations; and plaintiff is entitled to recover upon his paper title."

To the giving of which instructions defendants excepted.

The court refused the following instructions asked by defendants "(1) If the court, sitting as a jury, finds the facts to be that, after the death of Martin McCourtney in May, 1853, one Sloan and the heirs of one Krepps claimed title to a tract of land that included the premises here in controversy; that, after the death of the said McCourtney, his widow, Ann McCourtney, claimed as her own and rented the premises then in controversy to James E. Bacon, who went upon the same as her tenant; that while her tenant was in such possession an action of ejectment was brought against him by the said claimants for a tract of land that includes the premises here in controversy; that the said Bacon claimed no other interest in the premises than as such tenant; that the said Ann McCourtney became a party defendant to said suit, and that there was a final judgment rendered in favor of the defendants therein; that the said Ann McCourtney continued to occupy the premises in controversy in that suit, claiming the same as her own until her death in 1866, and during a period of more than ten years; that Henry H. Goodwin, under whom plaintiff claims, did not, during that time, occupy any of the premises in controversy in that suit, or in this suit, or cause himself to be made a party thereto, — then the defendants have shown title to the premises in controversy on the ____ day of August, 1866, in Ann McCourtney, by adverse possession and limitation of time, as against said Goodwin and those holding under him. And if the court further finds from the evidence that the said Ann McCourtney died on the ____ day of August, 1866, leaving as her sole heirs, her two sons and two daughters, to-wit, John M., Andrew J., Mary I., and Sarah A. McCourtney; that the said John M. and Andrew J. McCourtney left this state about the year 1864, and have never returned, or been heard from by their friends or relatives since that time, or for more than seven years next before the commencement of this suit; that the said Mary I. intermarried with George W. Link previous to the death of Ann McCourtney, and remained a married woman, and the wife of the said Link, up to within less than three years next before the commencement of this suit; that a partition of the premises embraced within the boundaries of the land recovered by the said Ann McCourtney in said cause was made about the year 1879 in the circuit court of St. Louis county, among the then surviving heirs of Ann McCourtney, and that the lots in controversy in this suit were assigned by the commissioners and the judgment of the court to the defendant Mary I. Link, — then the finding ought to be for the defendants.

"(2) If the court, sitting as a jury, believes from the evidence that at the time Geo. W. Link caused the quitclaim deed from Henry H. Goodwin, read in evidence, to be made to himself and John F. Howell, the said Link was the husband of the defendant Mary I. Link, and that she claimed an interest in a tract of land that includes the premises described in said deed, either by inheritance from her then deceased mother, or in any other manner, and no person was in possession of the same or any part thereof, holding adversely to her, then at the time of the execution and delivery of the said deed the said Link occupied such a fiduciary relation to the defendant Mary I. Link as prohibited him from purchasing an outstanding title against her; that such attempted purchase transferred no title to him, but, if any title did pass, it inured to the benefit of the defendant Mary I. Link, and the plaintiff cannot recover in this action.

"(3) The court declares the law to be that open, notorious, uninterrupted, and adverse possession of land for the period of limitation, under a claim of ownership, is as effectual to give title to the same against the true owner as a written conveyance from him. If, therefore, the evidence shows that Ann McCourtney, under whom the defendants claim title, took possession of a tract of land, which includes the premises in controversy, about the year of 1853, and lived upon it, cultivated the portions that were inclosed, successfully defended it from other claimants in the courts of the state; and that all this was done under a notorious claim of ownership up to the time of her death in 1866, during a period of more than ten years; and that during all that time no other person was in possession of any part of the tract, or asserted any claim thereto, — then her claim had ripened into a complete title, which could only be defeated by a subsequent possession of the same, or some part thereof, by another, for a sufficient length of time to ripen into a title under the statute of limitations against her or her heirs. And the court further declares the law to be that no hostile or adverse claim of George W. Link could effect [affect] the title of defendant if the evidence shows that she is a daughter of the said Ann McCourtney, or stop the statute of limitation from running in her favor, or start it running against her; that in law his possession was her possession.

"(4) The court declares the law to be that, if the evidence shows that Henry H. Goodwin,...