Hickman v. Link,

• Decision Date: 22 May 1893
• Citation: 22 S.W. 472,116 Mo. 123
• Parties: Hickman, Appellant, v. Link, et al
• Court: Missouri Supreme Court

22 S.W. 472

116 Mo. 123

Hickman, Appellant, v. Link, et al

Supreme Court of Missouri, First Division

May 22, 1893

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.

Reversed and remanded.

John W Booth for appellant.

(1) The owner of land is not required either to use it or to continually make assertion of his title. In the absence of an actual possession of some part of his land, his title carries with it the legal seizin and constructive possession. Douthitt v. Stinson, 63 Mo. 268; Turner v Baker, 76 Mo. 343. (2) The seizin of land cannot be in abeyance or suspense. 1 Washburn on Real Property [5 Ed.] top p. 67, sec. 96. (3) If a seizin be admitted or proved in any one, the law presumes it to continue until negatived by evidence by him who alleges a disseizin. 3 Washburn on Real Property [5 Ed.], top p. 156, sec. 27. (4) The law never raises a constructive possession against the owner of the land. 3 Washburn on Real Property [5 Ed.], top p. 164. (5) "Seizin in fact" necessarily implies possession. 1 Washburn on Real Property [5 Ed.], top p. 62, sec. 75. (6) Possession, to give title under the statute of limitations, must be visible, notorious and continuous, for the full period prescribed. Musick v. Barney, 49 Mo. 458; Pike v. Robertson, 79 Mo. 615. (7) Where a large tract covers small tracts of land owned by different persons, possession of one of the small tracts, under color of title to the large tract, is not constructive possession of any other of the small tracts; the other small tracts being unoccupied, the law casts the constructive possession on the owners of the true title. Schultz v. Lindell, 30 Mo. 310; Tayon v. Ladew, 33 Mo. 205; Leeper v. Baker, 68 Mo. 400. (8) To give color of title, there must be something in the nature of a transfer, by act of a party or by operation of law, from a preceding real or supposed owner. And, whatever this may be, it must be of such a character as to afford a basis for a bona fide claim of ownership of title. Good faith is indispensable. A party cannot manufacture color of title for himself, and a mere claim is not sufficient. St. Louis v. Gorman, 29 Mo. 593; Fugate v. Pierce, 49 Mo. 441; Crispen v. Hannavan, 50 Mo. 536; Rannels v. Rannels, 52 Mo. 108; Mylar v. Hughes, 60 Mo. 105; Hamilton v. Boggess, 63 Mo. 233; Hughes v. Israel, 73 Mo. 538; Gaines v. Saunders, 87 Mo. 557; Wright v. Mattison, 18 Howard, 50. (9) The legal title to land cannot be divested by abandonment. Only possessory rights not ripened into title may be so divested. Ferris v. Coover, 10 Cal. 617; Robie v. Sedgwick, 35 Barbour 319; Mayor v. Biddle, 25 Pa. St. 259. (10) Abandonment must be made by the owner without being pressed by any duty, necessity or utility to himself; but simply because he desires no longer to possess the thing; and further, it must be made without a desire that any other person should acquire the same. For if it were made for a consideration, it would be a sale or barter, and if without a consideration, but with intent some other person should become the possessor, it would be a gift. Stephens v. Mansfield, 11 Cal. 363. (11) Equitable defenses cannot be maintained in ejectment unless pleaded. Russell v. Whitely, 59 Mo. 196.

A. McElhinney for respondent, Martin Link.

The case was tried in accordance with the directions of the court on the former appeal (97 Mo. 482) and if there is any error in the record it is in appellant's favor.

Phillips & Stewart and C. H. Henderson for respondents.

The case comes again to this court without single new issue, having been retried in accordance with the opinion delivered on the former appeal, 97 Mo. 482, sufficient evidence having been introduced on the question of abandonment to warrant the submission of that question to the jury, the court will not disturb the finding of the jury.

Brace J. Barclay, J., absent.

OPINION

Brace, J.

-- This is an action in ejectment in which the defendants had a verdict and judgment in the trial court, and the plaintiff appeals. The case has been here before, and is reported in 97 Mo. 482, 10 S.W. 600.

On the first trial the verdict and judgment was for the plaintiff, and the defendants appealed. This judgment was reversed, and the cause remanded for new trial. On the second trial some new evidence was introduced, cumulative in its character, and in no way changing the complexion of the issues between the parties. It is, therefore, unnecessary to re-state the case. The law of the case was maturely considered, settled and clearly stated in the opinion of the court, rendered by Black, J., and will not be again discussed.

Two brief extracts from that opinion will show precisely the issues of fact that were to be submitted to the jury on re-trial. The plaintiff held title by deed to the land; there were two defenses. First , title by adverse possession; second, that plaintiff held his paper title in trust for the real defendant. After an exhaustive consideration of the law governing the first defense, the learned judge concludes by saying: "It, therefore, follows that if Goodwin failed or refused to pay the notes which he gave in part payment for his purchase of the two hundred and forty-five acres and abandoned the possession thereof, and Ann McCourtney or she and the heirs of Martin McCourtney, for a period of ten years had actual possession of a part of the four hundred and eighty arpents, and during that period claimed the whole, and exercised over the whole usual acts of ownership, then the defendant should prevail." After a like treatment of the law governing the second defense, he concludes by saying: "To the defense we have been considering, it is not necessary that Ann McCourtney should have had ten years adverse possession. It is enough to entitle this defense to prevail to show that Goodwin in 1853, or prior thereto, declined to pay the notes, abandoned the possession of the property, and that Ann McCourtney thereafter and to her death claimed the land, and defended the title against the adverse claim of Sloan and the heirs of Krepp."

It would seem that the issues of fact upon these two plain propositions could be clearly presented to the jury in five or six appropriate instructions, in drawing which there ought to be no difficulty. Nevertheless the case was sent to the jury on twenty instructions, nine given for the plaintiff, nine for the defendant and two by the court on its own motion; some of them so long that it would take one, and others two pages of a a volume the size of the Missouri reports to contain one of them. These multitudinous and voluminous instructions are subject to criticism in many respects, but no good purpose would be served by setting them out...