Leeper v. Baker

• Decision Date: 31 October 1878
• Citation: Leeper v. Baker, 68 Mo. 400 (Mo. 1878)
• Parties: LEEPER, Appellant, v. BAKER.
• Court: Missouri Supreme Court

68 Mo. 400

LEEPER, Appellant,

v.BAKER.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

Shanklin, Low & McDougal for appellant.

1.To constitute adverse possession, two facts must concur: 1st, There must be an entry, under color of right, claiming title hostile to the true owner and the world. 2nd, That entry must be followed by possession, and appropriation of the premises to use, publicly and notoriously, so that other claimants may take notice, and others may be cognizant of the fact.Dixon v. Cook,47 Miss. 220, 226;Turner v. Hall,60 Mo. 271.

2.Defendant's possession of the farm under a deed conveying the whole tract of 691 acres, gave him at most only constructive possession of the tract in controversy, as against persons not having title.The constructive possession of the true owner is preferred to the constructive possession of one who has no title.Griffith v. Schwenderman,27 Mo. 412.

3.The acts of ownership exercised over the land by defendant did not constitute actual, open, notorious and continuous possession.In the language of Bliss, J., in Musick v. Barney,49 Mo. 464,“Suppose the owner had visited the land * * would he have seen such evidence of possession by another as to warn him that his title was slipping away from him?And if so, was there anything to notify him as to who was the claimant?He might have seen that timber was cut, but this of itself shows only a trespass, unfortunately too common to be regarded as evidences of a claim of ownership.The payment of taxes is an act of ownership, the strongest shown by the defendant, and had it been accompanied by any improvement of the property, would have greatly aided the claim.”

4.Mere acts of ownership, as distinguished from actual occupation, are not sufficient to impart notice to the true owner of an adverse claim.“The late decisions of this court certainly manifest no disposition to multiply those evidences of adverse possession, which tend to give it a constructive character.”Turner v. Hall,60 Mo. 271.Adverse possession is not to be made out by inference, but by clear and positive proof, and the possession must be such as to show clearly that the party claims the land as his own, openly and exclusively.Jackson v. Berner,48 Ill. 203, 208.Pollard & Chapman for respondent.

1.Pedis possessio is not necessary in order to defeat an action of ejectment; neither is a fence, building or other improvement necessary or essential to constitute adverse possession.Acts of ownership under color of title and claim of right, visible, are sufficient; and the nature of these acts of ownership must depend on the uses of which the land is capable.Turner v. Hall,60 Mo. 271;Draper v. Shoot,25 Mo. 197.

2.An entry upon the cultivated portion of a farm, under a deed to the farm, the payment of taxes upon the whole, and such acts of ownership over the uninclosed portion for more than ten years as a man ordinarily exercises over the same, will give a constructive seizin of the whole tract to which the title extends, unless the person having the better title was within ten years in the actual possession of such part not actually occupied by the disseizor.Fugate v. Pierce,49 Mo. 441.

NAPTON, J.

This ejectment was brought in December, 1875.It was conceded that the plaintiff had the better title, and the only defense relied on was the statute of limitations.The forty acres in dispute belonged, in 1856, to Livingston county, as swamp land, and was agreed to be conveyed to one Craig upon his payment of eighty per cent. of the purchase money, twenty per cent. of it having been paid at the date of the agreement.This title of Craig was assigned to the plaintiff in 1860, and in 1866the plaintiff received a deed from the county.In 1860, but subsequent to Craig's assignment to plaintiff, Craig conveyed his farm containing 651 acres, 600 acres of which were under fence, together with this forty acre tract now in dispute, to a trustee to secure certain debts named in the deed.Upon the foreclosure of this trust by a sale in 1863 or 1864, the defendant's father-in-law purchased the entire tract of 691 acres, and obtained a deed from the sheriff, and the defendant entered and took possession of the place in the spring of 1865, and made use of this forty acre tract to supply himself with rails and house-logs, and watered his stock at a pond which was on it, and paid the taxes on it from 1864 to the trial.It appeared from the testimony at the trial that the land was unfit for cultivation, and that it could not be fenced up without the risk of its being washed off by high water.The plaintiff himself, who lived about eight miles off, testified on the trial: “I notified defendant about the time he took possession of the farm, that I owned the forty in dispute.”

1.CONSTRUCTIVE ADVERSE POSSESSION, when not established.

The first question presented by the testimony is, whether the actual occupation, under inclosure, of the 600 acres of land by the defendant, will of itself draw to it a constructive possession of the forty acres embraced in the same deed; and if not, whether it will, in connection with the exercise of the usual acts of ownership over the forty, to which there was a better outstanding title, constitute such an adverse possession as will protect him under the statute of limitations.The first point has been considered and decided by this court in several cases.They are chiefly cases in which New Madrid locations, under the act of 1815, were laid on portions of the St. Louis or St. Charles commons, thereby covering one or more common field lots to which the title originated under the act of 1812.The cases of McDonald v. Schneider and Griffith v. Schwenderman,27 Mo. 405, 412, are cases of this character.In the former it is observed by Judge Scott, who delivered the opinion of the court: “Although it is a rule that he who is in possession of a part of a tract of land, having title thereto, is adjudged by the law to be in the possession of the whole of it; and although it is a rule that where possession is mixed, or where two persons possess adjoining tracts, and their possession conflicts or interferes the one with the other, the legal possession is adjudged to be in him who has the better title; for, as both cannot be seized, the possession follows the title; yet, if he who has the inferior title enters upon the interference, and actually occupies it adversely to him who has the better title for a sufficient length of time, he will acquire a title against the true owner by limitation, as to the portion actually occupied, although the true owner may be in actual possession of that portion of his tract which is not covered by the interference.”This proposition, however, so far as it applies to the casewe are considering, is stated more clearly by Judge Ewing in the subsequent case of Schultz v. Lindell,30 Mo. 319, in these words: “Where a large tract embraces several smaller ones, a pedis possessio of a few acres (or many acres) by one setting up title to the larger tract, claiming the whole, would not be a defense against a superior title in...