Hunnewell v. Adams

• Decision Date: 23 January 1900
• Citation: 55 S.W. 95,153 Mo. 440
• Parties: HUNNEWELL et al. v. ADAMS.
• Court: Missouri Supreme Court

55 S.W. 95

153 Mo. 440

HUNNEWELL et al. v. ADAMS.

Supreme Court of Missouri, Division No. 2.

January 23, 1900.

ADVERSE POSSESSION.

Where defendant purchased the improvements and claim of one in possession of agricultural college lands believing that he could acquire title to the same from the United States under the homestead act, and it did not appear that he ever changed the character of his possession on learning that he could not acquire title therefrom, or when he began to hold adversely, if at all, he was not entitled to the land against a grantee of the state under a claim of adverse possession.

Appeal from circuit court, Oregon county; W. N. Evans, Judge.

Action by H. H. Hunnewell and others against Richard L. Adams. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

This is an action in ejectment commenced in the Oregon county circuit court to recover possession of the N. W. ¼ of the S. E. ¼ of section 29, township 22, range 2. The petition is in the usual form. The answer is as follows: "Defendant, for answer to plaintiffs' petition says that he admits that he is in possession of fifteen acres of the tract of land sued for, but denies that he is in possession of any other part or parcel of land, and disclaims all rights of title therein; that the said fifteen acres so claimed by the defendant is inclosed, but he cannot give a correct description of the same until the same has been surveyed; that the defendant has been for more than ten years next before the institution of this suit in the open, notorious, and adverse possession of said fifteen acres, and asks judgment for the same." Under the issues so joined the court ordered the county surveyor to make a survey and plat of the 15 acres claimed by defendant, which was accordingly done, and which plat is shown in the record. The testimony, in brief, was that the lands in controversy are a portion of the Agricultural College lands granted to the state of Missouri by act of congress of July 2, 1862. They were duly selected by the state in 1866, and on the 22d day of September, 1881, were deeded by the state to George H. Nettleton, who afterwards conveyed them to plaintiffs. These lands were not subject to entry, pre-emption, or homestead after they were granted to the state. Plaintiffs paid all the taxes up to time of trial, and defendant never paid any portion of the taxes at any time. Defendant's claim can best be stated in his own words. He says that in 1881 he came to Oregon county, and found one Lige Holt, since deceased, in possession of the 10 acres in dispute. "He said I could homestead it. I bought his improvements and claim to the place, and was going to homestead it in September. When I came here [that is to say, the county seat], they said I couldn't homestead it. I said, `What is a man to do?' The clerk said: `You have got a better right to it than any other man. Go back, and live on it, and work on it. That is all the advice I can give you.' And I did it, and am there till now." The plaintiffs asked, and the court, over their objection, refused, the following instruction: "(1) The court declares that the plaintiffs are entitled to recover unless the court finds that the defendant and those under whom he claims have been in the open, notorious, and adverse possession of said lands, claiming to be the owner thereof, for ten years before the institution of this suit. And if the defendant purchased the...