Lindell v. McLaughlin

• Decision Date: 31 March 1860
• Citation: 30 Mo. 28
• Parties: LINDELL et al., Respondents, v. MCLAUGHLIN et al., Appellants.
• Court: Missouri Supreme Court

30 Mo. 28

LINDELL et al., Respondents,

v.MCLAUGHLIN et al., Appellants.

Supreme Court of Missouri.

March Term, 1860.

1. There may be an estoppel in pais as to the boundary line between two adjoining propr ietors although no express agreement may have been made between them as to the location actually made; nor is it essential that the proprietor claiming the benefit of the estoppel should enclose up to the line; it is sufficient, if it would work a practical fraud upon him, to allow the other to disturb a location made, and acquiesced in, by himself.

2. The doctrine that possession of part is possession of the whole is inapplicable to such a case.

Appeal from St. Louis Land Court.

The facts in evidence in this cause sufficiently appear in the opinion of the court.

The following are the instructions given for the plaintiffs alluded to below in the opinion of the court: “1. If the jury find from the evidence that the land in dispute is embraced within the tract claimed by the plaintiffs under Fry as described in the deed given in evidence, and if they find that under that deed and immediately following its date, down to the commencement of this suit, the plaintiffs had actual possession, by enclosure of the greater part of the tract, claiming the whole tract, the law imputes to them the possession of the whole tract, though part of it may be beyond the enclosure; and that possession is good as against the defendants unless they prove open, notorious, actual, adverse possession in themselves or another, for twenty consecutive years prior to the commencement of this suit. 2. The fence, in order to become an estoppel to plaintiffs' action, must have been built as a dividing fence between Fry and Lucas, or between plaintiffs and Lucas, and must have been mutually agreed upon as such between the plaintiffs and Lucas or Fry and Lucas, and the burden of proving said facts is upon the defendants. If the plaintiffs built their fence to enclose their land in whole or in part, and, by accident or mistake as to the true lines, left out a part thereof on the west to which they had a title by deed, such fence and the building thereof by plaintiffs, and the possession of the land so fenced, form no estoppel against the plaintiffs claiming and recovering their true lines in this suit according to their deed. 3. If a party, in enclosing his land, erroneously or mistakenly leaves out of his enclosure a portion thereof, this is no evidence of any estoppel to bar him from claiming according to the extent of his true title. 4. The taxes paid by James H. Lucas, the tax receipts therefor, and the entries in the assessor's books of the lands assessed to the Lindells adjoining the premises in question, are not any evidence affecting the title to the premises in question, and are not any evidence of estoppel against the claim of the plaintiffs to the premises in question in this suit. 5. The verbal declarations of the plaintiffs, or either of them, as to the extent of their tract, made to any other person than John B. C. Lucas or James H. Lucas, are wholly inadmissible to affect the question of title or boundary to the premises in question, and the jury is instructed to disregard the same. Such verbal declarations do not in any manner estop the plaintiffs from claiming the true lines of their tract. 6. If the jury find for the plaintiffs they will also assess as damages against the defendants the rents and profits of the premises in question from the time of the commencement of this suit and the monthly value of the rents and profits thereof.”

Glover & Richardson, for appellants.

I. There was clearly an estoppel in pais. All the elements constituting an estoppel in pais exist. 1st, an admission inconsistent with the claims offered to be set up; 2d, action by the other party upon such admission; 3d, an injury by the withdrawal of the admission. The first instruction was calculated to mislead the jury. The question of time did not enter into the case. The verbal declarations were improperly ruled out by the instruction No. 5. The instruction given was erroneous. (1 Greenl. Ev. § 207; 26 Verm. 373; 7 Cow. 762; 12 Wend. 423; 7 Johns. 238; 9 Barb. 618.) It is not necessary that there should be an express agreement. (12 Wend. 130; 18 Wend. 157; 9 Johns. 99; 11 Johns. 122; 16 Mo. 273.)

B. A. Hill, for respondents.

NAPTON, Judge, delivered the opinion of the court.

The instructions given for the plaintiffs in this case were not, in our judgment, calculated to lead to a proper adjustment of the controversy.

The first instruction is a mere abstraction, outside of the facts in evidence, and tending to throw no light upon the questions really contested. The legal principle asserted is undoubtedly correct, but it has a tendency to withdraw the investigations of the jury from the defence which is relied on. The case was not one of a proprietor taking possession of a part of his tract and claiming the whole. The case attempted to be made out by the defendants was of an undisputed possession of the plaintiffs, of what they supposed to be their whole tract, and an entire absence of any claim to anything outside of their actual enclosure. Whether the plaintiffs were entitled to go beyond their enclosure and claim and recover according to their lines as designated in their deed, under the circumstances and facts in evidence, was the point to be determined, and the instruction furnishes no guide to the determination of this question.

The second instruction is directed to the questions at issue, and the general proposition asserted in its first clause may be conceded to be correct. The objection to this instruction, as well as to the three instructions which immediately follow, is, that they select detached facts, and pronounce each separate fact insufficient in law to sustain the defence, without determining upon their effect as a whole and continuous, connected transaction.

To understand the points of law presented by the record, it is necessary to refer to the main facts, which appear to be these. Jeremiah Conner may be considered the original owner of the common field lot or forty arpent lot, concerning a portion of which this dispute has arisen. In November, 1821, Conner conveyed the west half of this lot to Col. O'Fallon, and in June, 1824, the east half was conveyed to one Fry, who immediately took possession of his half and enclosed it. The...