Himmelberger-Harrison Lumber Co. v. Craig
| Decision Date | 28 February 1913 |
| Citation | 154 S.W. 73,248 Mo. 319 |
| Parties | HIMMELBERGER-HARRISON LUMBER COMPANY, Appellant, v. SIMON E. CRAIG |
| Court | Missouri Supreme Court |
Appeal from New Madrid Circuit Court. -- Hon. Henry C. Riley, Judge.
Reversed and remanded (with directions).
Oliver & Oliver for appellant.
(1) Appellant having shown a perfect legal title to the land in question and that the respondent was placed in possession of it in 1905, as the tenant of appellant, defendant could not subsequently set up an adverse holding. Sec. 7885, R.S. 1909. (2) Having shown a perfect legal title to the land in question, and having further shown that defendant entered into the possession of this property as the tenant of appellant, and was in possession at the time of the bringing of this suit, after notice to surrender the possession thereof, appellant was entitled to a judgment against respondent under the ejectment statute. Sec. 2389, R.S. 1909. (3) There is absolutely no testimony in this case showing that this defendant, or either of the Craigs, ever held this land adversely to the appellant or its grantor -- the county of New Madrid -- until after 1906. This being so, appellant was entitled to judgment at the close of all the evidence and the court erred in refusing to give the peremptory instructions at the close of the evidence. Feller v Lett, 225 Mo. 326; Hunnewell v. Adams, 153 Mo 460; Stevenson v. Black, 168 Mo. 560; Chilton v. Comanianni, 221 Mo. 685. (4) The court should have declared the law as prayed for in the third declaration asked by appellant. The only claim set up by any of these "squatters" was to the "improvements" on the land. Hunnewell v. Adams, 133 Mo. 443; Bernarde v. McElroy, 110 Mo. 659; Bowman v. Lee, 48 Mo. 335; Hunnewell v. Burchett, 152 Mo. 611.
Henry S. Shaw for respondent.
(1) A title acquired by adverse possession not only bars the recovery by the owner of the record title, but extinguishes his title and vests it in fee in the adverse occupant. The title is one in fee simple, and is as perfect a title as one by deed, or patent or grant. When once acquired it continues until conveyed by the possessor or lost by another adverse possession. Boyce v. Railroad, 168 Mo. 583; Long v. Lackawana C. & I. Co., 233 Mo. 713; Adams v. Gossmon, 228 Mo. 566. (2) Color of title need not be a valid title. Any writing which purports to convey land and describes the same is color of title, though the writing is invalid and conveys no title. Allen v. Mansfield, 108 Mo. 343; Brewing Co. v. Payne, 197 Mo. 422. A description though indefinite, is sufficient if the court can, with the aid of extrinsic evidence, which does not add to, enlarge, or in any way change description, fit it to the property conveyed by the deed. Thornton v. Railroad, 40 Mo.App. 265; 1 Cyc. 1091. (3) A trespasser without any shadow of title who enters upon land and holds adversely to the true owner for ten years will become the owner, at the expiration of that period. Wilkerson v. Eiler, 114 Mo. 245; Bushey v. Glenn, 107 Mo. 331; Boyce v. Railroad, 168 Mo. 583; Quick v. Rufe, 164 Mo. 408. (4) Though the law confines one whose entry is initially wrongful to such part of the land of which he actually holds possession, yet such possession will include all that is used as an adjunct or necessary to the enjoyment of that actually cultivated and will be estimated by natural or legally established boundaries. County v. Vowells, 101 Mo. 225; Bonsor v. County, 204 Mo. 84; Nall v. Conover, 223 Mo. 477. (5) The Statute of Limitations runs against the county as well as against individuals except where it holds property for public, pious or charitable uses. R.S. 1909, sec. 1886; County v. Chouteau, 120 Mo. 577; Nall v. Conover, 223 Mo. 477. (6) There is no estoppel in this case, because the very fact that the county court excluded lands claimed by others from the patent to the lands conveyed to Himmelberger was notice to him that there were adverse claimants to and occupants of many tracts of these lands, hence he bought with his eyes open. If Mrs. Craig's title to the land in suit had ripened into a perfect title by limitation, she deceived no one and defrauded no one by insisting on holding what was hers, without leave or license from the county court or any one else. Tennent v. Ins. Co., 133 Mo.App. 345; Williams v. Butterfield, 214 Mo. 412. (7) Since the court only entertained an application for eighty acres, Mrs. Craig had a perfect right to consummate her title to one eighty-acre tract and to hold the other under adverse possession if she so desired, and no one was defrauded thereby. Mather v. Walsh, 107 Mo. 121. (8) A party in possession of land may fortify his right thereto by acquiring any outstanding interest therein, without thereby weakening the force or effect of his possession. Mather v. Walsh, 107 Mo. 121; Finlay v. Babb, 173 Mo. 257.
In July 1907, plaintiff sued in ejectment for eighty-acres, viz., the southwest quarter of the northeast quarter and the northwest quarter of the southeast quarter in section 18, township 22, range 11, New Madrid county, on what is known as "a ditch title," laying ouster as of January 1st of that year.
The pleadings. The petition was conventional. Defendant answered by general denial, modified by the averment that he and those under whom he claims have been "in open, notorious and adverse possession of the premises in plaintiff's petition described for more than thirty years."
The replication put in issue the fact of adverse possession under a claim of title as against the legal owner, and further pleaded the existence of a certain Luce contract, whereby Luce purchased the land in question with a great body of other swamp land from New Madrid county, in consideration of doing certain reclamation work, which contract was renewed with the Luce heirs and contained a provision whereby actual settlers might make application for the land which they had improved in the swamps to the extent of eighty-acres, and by proving certain facts might obtain a patent therefor by paying in for the benefit of the Luce heirs $ 1.25 per acre, the contract price to them; that the Craig family made applications under that contract and had land assigned to them in some instances; that defendant (a member of that family) made an application for other land which was denied. That these things happening in 1899, the Craigs (including Simon) thereby recognized the legal title was in New Madrid county and that plaintiff's grantor was entitled to and received the proceeds of the land in section 18 patented to the Craigs. Thereupon plaintiff's grantor, having fully performed the reclamation contract, at the same time received a patent for the residue of section 18, including the land in dispute. That in the adjustment thus made the Craigs (including Simon) admitted themselves squatters and as not asserting any adverse possession; that plaintiff's grantor bought in good faith for value without any knowledge of defendant's claim and in 1903 plaintiff went into peaceable possession; that thereafter it put defendant in possession under an arrangement (amounting to a tenancy); that thereafter defendant, repudiating such arrangement, attempted to hold possession against plaintiff's will. Wherefore estoppel is pleaded.
At a trial to the court without a jury, the judgment gave one forty to plaintiff, the other to defendant. Defendant abides. Plaintiff appeals.
The facts:
The legal title of record is in plaintiff. It passed out of New Madrid county to one Himmelberger in 1899, and through mesne conveyances to plaintiff in 1902. Defendant has no record title whatever, but claims through adverse possession. The whole of section 18 was swamp land, as was much other land in New Madrid. The title thereto, as a matter of history, emanated from the general Government to the State in the fifties and was by the State granted to the respective counties in whose borders the swamp land lies. In 1885 New Madrid county, as it had a right to do, made a contract with one Luce to do certain reclaiming work in ditching, and take his pay in swamp lands, including section 18, at $ 1.25 per acre. While there is some comment on the fact that this contract disposed of a "principality" yet its validity is conceded. Luce dying before full performance, that contract was renewed with his heirs and Himmelberger became interested therein. It seems that from an early date, maybe ever since the earthquake, hunters and trappers now and then went out into these swamps, sometimes built cabins, sometimes made clearings, called locally "openings," and lived there, either at all times or at spells, plying their venturesome and primeval vocation, and sometimes raising crops about their cabins to subsist upon. In the apt language of the country, harking back to pioneer times for the tang of it, such cabin and clearing was called "a claim," "an improvement," "a possession." Sometimes these claims were "jumped." Sometimes a squatter sold what he called "his right to possession" or "possession" -- all of which bargaining was seemingly regulated by local usage, a kind of "breast law," if we may borrow a phrase from Manx jurisprudence.
Realizing the practical difficulties of the situation, with its possible attendant equities, to deal tenderly with those who had such "claims" on county lands (as these swampy lands were) the Luce contract provided inter alia, as follows:
"It is further agreed that any persons who are now in the actual personal possession of any of the lands, the legal title to which is now in New Madrid county, and who have made improvements, and are now residing thereon, shall have the right to purchase said lands, at the time the same are patented or...
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