Jamison v. Wells

• Decision Date: 25 May 1928
• Docket Number: 26430
• Parties: JAMISON v. WELLS et al
• Court: Missouri Supreme Court

7 S.W.2d 347

JAMISON v. WELLS et al

No. 26430

Supreme Court of Missouri, Second Division

May 25, 1928

Jos R. Palmer, of Elsberry, and Killam & Avery, of Troy, for appellants.

V. S Smith, of Bowling Green, for respondent.

OPINION

WALKER, J.

This is an action in two counts brought in the circuit court of Lincoln county. The first count is to quiet title and the second to recover the possession of certain lots and parts of lots on the site of the former town of Falmouth in said county. This is the second appeal in this case. Upon the first appeal there was a judgment for the defendants which was reversed by this court on the ground that the evidence of the plaintiff's title by adverse possession was sufficient to go to the jury. The case is reported in (Mo Sup.) 250 S.W. 63.

I. It will serve no useful purpose to set forth in detail the evidence in this case. The appellant, following, perhaps, our construction, City of St. Louis v. Vaughn, 273 Mo. 582, 201 S.W. 524, of Rule 14 (concerning the correctness of which I have always been in doubt). has submitted a complete printed transcript of the proceedings, instead of an abstract containing a succinct statement of the case. This transcript we have carefully reviewed, with the result that we find the evidence adduced on the part of the plaintiff ample to sustain the verdict. We therefore affirm the action of the trial court overruling the defendants' motion in the nature of a demurrer to the evidence.

In overruling the demurrer, the substantial character of the evidence to sustain the verdict is held to necessarily follow. Bachman v. Q. O. & K. C. R. Co., 310 Mo. 48, 274 S.W. 764; Miss. Val. Tr. Co. v. Begley, 310 Mo. 287, 275 S.W. 540; Phillips v. Biernacki (Mo. App.) 272 S.W. 707.

II. There is no question but the evidence for the respective parties is conflicting. Where conflicts of this character are evident, as we held in the former opinion in this case and have held in other cases, the determination of the question of adverse possession is for the jury. Jamison v. Wells, (Mo. Sup.) 250 S.W. 63; Keaton v. Hamilton, 277 Mo. 540, 211 S.W. 29; Connor Realty Co. v. Sparlin (Mo. Sup.) 190 S.W. 6; Romine v. Haag (Mo. Sup.) 178 S.W. 147. The acts of ownership of the plaintiff under color of title are shown by the testimony to have conformed to all of the requisites necessary to constitute adverse possession for a period of more than ten years. While actual occupancy during many of the years plaintiff held the property under color of title was sufficiently shown to constitute adverse possession, if such possession had at times been constructive, it would not destroy, within the meaning of the law, its adverse character. Baker v. Thompson, 214 Mo. 500, 114 S.W. 497; De Bernardi v. McElroy, 110 Mo. 650, 19 S.W. 626. No more affirmative act of ownership can be asserted than the rental of the land by the plaintiff and the collection of the rents thereon. The inclosure of the same by fences at different times and the payment of taxes due on the land are, in addition to other more potential facts, persuasive evidence of actual possession. Phillips v. Broughton, 270 Mo. 365, 193 S.W. 593; Stone v. Perkins, 217 Mo. 586, 117 S.W. 717.

III. Although the instrument under which color of title is claimed may be actually void and convey no title, if it purports on its face to convey the title to the land in question by appropriate words of transfer it will constitute color of title. Dunnington v. Hudson, 217 Mo. 93, 100, 116 S.W. 1083; Hickman v. Link, 97 Mo. loc. cit. 488, 10 S.W. 600; Allen v. Mansfield, 108 Mo. 343, 18 S.W. 901. Plaintiff's deed possessing the requisites above defined, it constituted color of title.

IV. Where, however, the deeds under which the defendants claimed title contained such descriptions of the land as to render its location and identity impossible of determination, the ambiguities were patent; they could not be aided by extrinsic evidence, and hence do not constitute color of title. Romine v. Haag (Mo. Sup.) 178 S.W. 147, 153; McCormick v. Parsons, 195 Mo. 91, 92 S.W. 1162; Campbell v. Johnson, 44 Mo. 247.

As illustrative of the patent ambiguity of these deeds it appears that a part of a tract is referred to but the description...