Knowlton v. Smith

• Decision Date: 31 October 1865
• Citation: 36 Mo. 507
• Parties: ZENON KNOWLTON, Appellant, v. LOUIS C. SMITH, Respondent.
• Court: Missouri Supreme Court

36 Mo. 507

ZENON KNOWLTON, Appellant,

v.LOUIS C. SMITH, Respondent.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Charles Circuit Court.

This was an action of ejectment for about fifty-two acres, being part of United States survey No. 1692, originally granted to Antoine Prieur. The whole survey became the property of William P. Clark, whose administrator, in 1842, sold it in two equal portions; the western half to John P. Belton, under whom the plaintiff claims and the eastern half to Francis Yosti, under whom the defendant claims. It did not appear that any dividing line was run at this time, nor did the administrator's deeds to the parties give any courses or distances, merely referring to an equal division of the tract of 800 arpents, and describing the Belton tract as lot No. 2, containing 400 arpents, and the Yosti tract as lot No. 1, containing 400 arpents. The testimony tended to show that after the sale, but before the execution of the deeds, Belton and Yosti had a division line surveyed and run by one Wardlaw, and expressed themselves contented therewith and agreed to abide by it.

Defendant's testimony tended to show that his possession at the commencement of the suit extended only to this Wardlaw line; rebutting testimony was introduced by plaintiff, tending to show that defendant's possession extended over on plaintiff's side of the Wardlaw line.

Plaintiff's testimony tended to show that although Wardlaw's line divided the tract equally, as he located the outer boundaries, yet in fact he did not correctly ascertain those boundaries according to the United States survey, but made the tract larger by about fifty acres than it really is; that, as a result of this error in the out-boundaries, Wardlaw located the division line too far over on the plaintiff's side, sufficiently to embrace the land in dispute or the greater part of it. The testimony also tended to show that the true location of a dividing line, in accordance with the United States survey, showed the land in controversy to be on the plaintiff's side of such true line, and that it was in defendant's possession at the commencement of the suit. It was not claimed by plaintiff that his title papers, exhibited in evidence, vested in him more than an undivided half of the land in dispute. The testimony tended to show that in 1843, one Joseph Blair held possession under a contract of purchase from Thomas W. Cunningham, of the eastern half, now held by defendant; that, finding himself unable to complete his purchase, and being informed that the western half was likely to become the property of his wife by a gift from her grandfather, he moved some rails cut by him on the eastern half over on the western half, and there built a fence with them, thus, for the purpose of saving the rails, virtually extending his possession a considerable distance over the line, and so as to include the land in controversy, or more. The evidence also tended to show that this fence was moved back again, but there was some conflict as to whether this last operation restored the possession to the Wardlaw line, or to a line west of it.

It was contended by the plaintiff, that this extension of possession by Blair, for the mere purpose of saving his rails, and not as an act of ownership or assertion of title, could not be considered in giving effect to the defendant's plea of limitation. The deed from William P. Clark, administrator to John P. Belton, exhibited by plaintiff as a link in his chain of title, contained no recital of the report of sale made by the administrator, nor of an approval of such report by the probate court. The deed from Francis Yosti to Thomas W. Cunningham, exhibited by defendant, described the land conveyed as the “eastern half of survey No. 1692, and designated as lot No. 1 in the division,” &c. Referring further to the sale by William P. Clark's administrator to Yosti, “and containing, by late survey, four hundred and twenty-nine acres, be the same more or less.”

The court gave, on plaintiff's application, the instructions sustaining his position as to Belton's temporary occupancy of part of the western half of the survey, but refused the instructions asked for by plaintiff to the following effect:

1. That the plaintiff's chain of title was sufficient to establish his ownership of an undivided half of the land sued for, unless defendant had shown a paramount title by the statute of limitations or satisfactory proof of an agreed line.

2. That if Wardlaw's division line was mistaken or erroneous, and was agreed upon by the parties in ignorance of the true facts of the case, and in consequence of such mistake, it was not binding on the parties as an agreed line, but the rights of the parties should be determined by the true division line.

3. That if it appear that plaintiff and defendant were entitled to equal halves of survey 1692, the respective rights of the parties should be determined by a line so dividing the survey.

4. That even if there was a valid agreement as to the Wardlaw line, yet if at the commencement of the suit the defendant's possession extended over that line, the plaintiff was entitled to recover an undivided half of the land so encroached upon by defendant.

The court gave, on defendant's application, instructions embodying the following propositions:

1. That the deed from William P. Clark, administrator to Belton, was void for want of a recital of the administrator's report of sale and its approval, and for want of any other proof of such report and approval.

2. If it appear that a division line was agreed upon between Belton and Yosti, and that the respective claimants have since continuously held possession according to that line, then both parties are estopped from disputing such line and the plaintiff cannot recover.

3. That possession under the deed from Yosti to Cunningham, if for a sufficient length of time, and adverse, and including the land in controversy, was sufficient to sustain the plea of limitation.

The plaintiff took a non-suit, with leave to move, &c. upon the overruling of which motion, he took an appeal.

E. A. Lewis, for appellant.

I. The plaintiff's chain of title was at least prima facie complete, and could be controverted only by paramount title shown in defendant.

II. The court erred in refusing the second and third instructions asked by plaintiff. Agreements establishing boundary lines are, like all other agreements, of no binding force upon the parties if founded upon mutual mistake in material fact. (Menkens v. Blumenthal, 27 Mo. 198; Frederick v. Brulard, 6 La. An. 382; Gray v. Couvillon, 12 id. 730; Westly v. Sargent, 38 Me. 315; Carroway v. Chacey, 2 Jones' Law, 170; Cunningham v. Roberson, 1 Swan, 138.)

III. The deed from Clark's administrator to Belton contained every recital required by the statute in force at the time. (R. C. 1835, p. 53, §§ 22-3.) The law declares that “such deeds shall convey all the title,”&c. not that such deed, “together with proof” of the precedent steps, shall have that effect. In the absence of proof to the contrary, the legal presumption is that all the precedent requisitions were complied with. (Grignon v. Astor, 2 How., U. S., 319; Jackson v. Jenkins, 4 Wend. 436; Snyder v. Marshall, 8 Watts, 416; Overton v. Johnson, 17 Mo. 442.) Nor can this presumption be questioned in a purely collateral proceeding. The cases of Valle v. Fleming, 19 Mo., 454; Speck v. Wohlein, 22 Mo. 310, and Bank v. White, 23 Mo. 342, furnish no authority for this case.

Whittelsey, for respondent.

I. The deed of the administrator did not recite that he had made report of his proceedings under the order of sale, and that his report had been approved, nor did the plaintiffs offer in evidence the record of the St. Louis probate court...