Long v. McDow

• Citation: 87 Mo. 197
• Parties: LONG et al., Plaintiffs in Error, v. MCDOW.
• Decision Date: 31 October 1885
• Court: United States State Supreme Court of Missouri

87 Mo. 197

LONG et al., Plaintiffs in Error,

v.MCDOW.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Morgan Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

James A. Spurlock for plaintiffs in error.

The leading cases on the question presented are, Warfield v. Lindell, 30 Mo. 272, and the same case, 38 Mo. 561; Lapeyre v. Paul, 47 Mo. 586. The common law and American authorities are examined in these cases. It seems certain that the plaintiffs' right of action was not barred, because the entry of defendant's was not made under an adverse title from others, but under the common title of all, If the entry had been adverse the defendant had not occupied the lands, definitely, for twenty-four years before the commencement of this suit.

A. W. Anthony and R. F. Walker for defendant in error.

There is no error in the record. Plaintiffs base their claim of title on a patent to H. Sanari, dated June 5, 1841. The evidence offered was insufficient in law to establish the title of the land in Ira Nash, the grandfather of Mrs. Long, the plaintiff. The evidence disclosing the fact that defendant had been in the actual possession of the land for over twenty-four years, the plaintiffs were, therefore barred by section 3222, Revised Statutes. Valle v. Obenhause et al., 62 Mo. 81; Rogers v. Brown et al., 61 Mo. 187. Twenty-four years' possession being shown, to avoid the prohibition of the law (if it can be avoided at all), the plaintiffs must establish the fact that the possession was not adverse, or that the prohibition of the statute does not apply.

SHERWOOD, J.

Plaintiffs, who are husband and wife, sue in ejectment for the one-third part of the southeast quarter of section eighteen, township forty-two, range sixteen, lying in Morgan county, Missouri. Ira Nash, a former resident of Boone county, was the father of three children, Neppy, who married Isaac Jeffries; Alpha M., who married John McDow, and Zarada Nash, who married Greene Hutchings. The issue of this last marriage is the plaintiff, Caroline Long, who married her co-plaintiff and husband in 1836, and removed with her husband to California in 1850, where they have since resided. Neither she nor her husband was ever on the lands in dispute, or knew till about two years prior to suit brought that McDow and wife claimed adversely to them. The defendant is the son of John and Alpha McDow, who died pending this suit, and were the original defendants therein, and who moved on to the land in dispute and took possession thereof in the year 1854, some twenty-five years prior to the bringing of this ejectment. The defendant, as well as two sisters, still remains in possession of the land, and this possession has been continuous from the time of its inception. Ira Nash died, it seems, about the year 1845, and the parents of the plaintiff, Caroline, are also dead. The defendant admitted possession of the premises, but pleaded the statutes of limitations of ten and of twenty-four years, claiming adverse, open and notorious possession of the premises for that length of time. The plaintiffs replied by a general denial and with a plea of coverture.

To maintain the issues on their part the plaintiffs read in evidence a patent from the United States to “H. San Ari” for the land in controversy. This patent bore date June 5, 1841. They also introduced Hiram Mandole, who testified that he had heard of an eccentric man by the name of Ira Nash, who lived in Boone county; that in 1842 or 1841 a man came to his house, told him his name was Ira Nash, and that he had entered the land in dispute in his own name, “spelled backwards.” Mandole also testified that he knew Nash when he came, from what he had heard of his eccentric ways. By this witness, as well as by other witnesses for plaintiffs, was established the other facts already narrated. No objections were interposed to the introduction of any of the foregoing evidence.

At the close of plaintiffs' case the defendant asked and the court gave an instruction in the nature of a demurrer to the evidence, whereupon the plaintiff took a non-suit, and, after vainly moving to set the same aside, sued out the present writ of error. The sufficiency of the evidence to authorize the cause to be submitted to the jury is the only question the record presents.

And, first, as to the patent already mentioned. The possession of this patent, its genuineness not being questioned and coming apparently from the proper custody is, when taken in connection with other circumstances to be presently mentioned, some evidence of title in those persons in whose possession it was found. Thus, it is said by Starkie: “It is every day's practice to prove the title of A B to an estate by proof of the execution of a conveyance by C D, a former owner in possession of the estate.” Starkie Evid. 472. As the grantor, in this case, is the United States government, the paramount source of all title in this country, its possession of the land patented, and title thereto at the time of the issuance of the patent...