Hunnewell v. Burchett

• Decision Date: 12 December 1899
• Parties: HUNNEWELL et al. v. BURCHETT.
• Court: Missouri Supreme Court

54 S.W. 487

152 Mo. 611

HUNNEWELL et al. v. BURCHETT.

Supreme Court of Missouri, Division No. 2.

December 12, 1899.

ADVERSE POSSESSION.

Where one, at the time of buying a claim to land, erroneously thought it was government land, and intended to make a homestead of it, his possession thereof prior to learning his mistake was not under a claim adverse to the true owner, so as to give title by adverse possession.

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

Action by H. H. Hunnewell and others against Jasper Burchett. Judgment for defendant. Plaintiffs appeal. Reversed.

Wallace Pratt and W. J. Orr, for appellants. A. H. Livingston, for respondent.

BURGESS, J.

This is ejectment to recover the possession of three-quarter sections of land from defendant, which are alleged to be wrongfully detained by him. This suit was commenced in July, 1895, the ouster being laid on the 20th day of that month. The petition is in the usual form. The answer admits the possession of 10 acres of the tracts sued for, but denies the possession by defendant of any other portion of the land, and disclaims all right or title thereto. It then pleads the 10-year statute of limitations with respect to that part of which defendant admits possession. The case was tried by the court, a jury being waived. The trial resulted in a judgment for defendant, from which plaintiffs, after unsuccessful motion for new trial, appeal.

The lands described in plaintiffs' petition are part of what are known as "Agricultural College Lands," granted to the state of Missouri by act of congress on July 2, 1862. They were selected by the state in 1866 from the lands granted, and on the 22d day of September, 1881, they were deeded by the state of Missouri to George H. Nettleton, who afterwards conveyed them to these plaintiffs. They were not subject to entry, pre-emption, or homestead after they were granted to the state on July 2, 1862. Plaintiffs paid all taxes upon the land from 1881 up to the time of the trial. Defendant testified that he took possession of that part of the land of which he admits the possession on the 17th day of November, 1895, and had been in the continuous possession of it ever since, having bought it from one Forest. This suit was begun in July, 1895, so that defendant's possession by reason of his personal occupation of the land was not for 10 years before the commencement of this suit, and therefore no bar to plaintiffs' action, even if adverse; and unless the possession of Forest, from whom defendant bought, was also adverse to plaintiffs, the statute of limitations was no bar to this action, for, in order that the possession of land may bar the true owner of his right to its possession when the occupant holds possession without color of title, as in the case at bar, his possession must be open, notorious, continuous, and adverse for the period of 10 consecutive years, under claim of ownership. Bowman v. Lee, 48 Mo. 335; Fugate v. Pierce, 49 Mo. 441; Nelson v. Brodhack, 44 Mo. 596; Wilkerson v. Eilers, 114 Mo. 245, 21 S. W. 514. "The term `adverse possession' designates a possession in opposition to the true title and real owner, and it implies that it...