Lynde v. Williams

• Decision Date: 31 October 1878
• Citation: 68 Mo. 360
• Parties: LYNDE v. WILLIAMS et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

68 Mo. 360

LYNDE

v.WILLIAMS et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1878.

Error to Linn Circuit Court.--HON. G. D. BURGESS, Judge.

This action was brought against Williams, the occupant, and afterwards Erskine, his landlord, was, by agreement, made a party defendant. The deeds relied on by plaintiff, as color of title, to make out title by adverse possession under the statute of limitations, were the following: from the register of lands to A. H. Donahoe, of date January 2nd, 1856, for the east half of section 36; from A. H. Donahoe to Stephen Donahoe, of date February 10th, 1857, for the same; from Stephen Donahoe to William S. Donahoe, of date May 24th, 1858, for the same; from W. S. Donahoe to Hamilton DeGraw, of date ____ day of ____, 1867, for the northeast quarter of section 36; from F. H. DeGraw to Hamilton DeGraw, of date November 6th, 1865, for the same; from H. DeGraw to John P. Jones, of date November 22nd, 1867, for the same; from John P. Jones to plaintiff, of date July 25th, 1868; from Otho Reams to H. DeGraw of all his improvements upon the land, of February 10th, 1866, and a lease back to said Reams from DeGraw of same date for the northeast quarter, commencing March 1st, 1866, and running to March 1st, 1867; a lease from H. DeGraw of same to J. A. Arbuthnot, of date August 3rd, 1866, running to March 1869; a conveyance from Jesse H. Brewer of all his interest in the same, together with his improvements, of date of July 5th, 1867. In connection with these conveyances, testimony as to the possession was given, tending to prove that in 1857 or 1858, William Brewer, who owned a farm of eighty acres adjoining on the west, by mistake, fenced over on the land claimed by Donahoe, and, altogether, took in about twenty acres of this land, which was broken up by him; that, after the mistake was discovered, he consented to hold the same as the tenant of W. S. Donahoe, and did so hold until 1864, when he turned over the place to his son, Jesse Brewer, who, in 1865, sold the improvements to Otho Reams, who took possession and raised a crop on the land; that the old Donahoe house on the southeast quarter was occupied in 1866 by Jesse Brewer as tenant of Donahoe; and that Donahoe's possession had run from 1858, through his tenants and those claiming under him, to 1868 or 1869. The subjoined plat will assist in understanding plaintiff's case.

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

The defendant claimed title under Jonathan Floyd, the original patentee. He offered and read in evidence a power of attorney by Thomas Floyd, therein named as sole heir at law of Jonathan, to E. W. Cecil, of date September 9th, 1858; a deed from Thomas Floyd, by Cecil, as attorney in fact, to defendant, Erskine, of August 22nd, 1859. He read depositions showing that Jonathan Floyd died in 1823, leaving a widow and son; that the son died unmarried without issue, leaving his mother surviving him; that his mother married a Mr. Neal and moved to Kentucky. Defendant also claimed to have acquired the Donahoe title and possession through a sheriff's deed, of date September 1st, 1862, to N. D. Stephenson, on a judgment of May 5th, 1862, in the probate court of Linn county, against W. S. Donahoe, upon which the whole east half of section 36 was levied on and sold as his property for $3.00. This deed recited that such sale was made “at the court house of my said county of Linn, during the session of the probate court of Linn county, at the September term thereof, for the year 1862.” Defendant also read a deed from N. D. Stephenson, of said land to the defendant, Erskine, of date December 16th, 1872. He also offered testimony to show that when possession was taken by him in 1870, the land was vacant and without any improvements upon it.

The court, on plaintiff's motion, gave the following instructions:

1. The jury are instructed that if they believe from the evidence that defendants only claim to connect themselves with the title of Jonathan Floyd, patentee, by and through a deed from Thomas Floyd; and further believe from the evidence that said Jonathan Floyd died about the year 1822, leaving a widow and one son, and that the son died intestate, without children, leaving his mother surviving, and that defendants do not claim title from either the mother (now Mrs. Neal) or her son, then the jury are instructed that defendants have failed to connect themselves with the title of the patentee, Jonathan Floyd.

2. The jury are instructed that the defendants have not shown any legal paper title to the land in controversy, unless the jury believe from the evidence that Thomas Floyd was the son or only heir at law of Jonathan Floyd, the patentee; and if the jury believe that Donahoe, by his tenant, Brewer, had the first actual possession of part of said land, claiming the whole tract under color of title thereto, and that plaintiff succeeded to his possession, and that such possession was not abandoned, then the jury are bound to find for the plaintiff.

3. The jury are instructed that the deed read in evidence from the heirs of Stephen Donahoe to W. S. Donahoe, of date 24th day of May, 1858, the conveyance from Jesse Brewer, Otho Reams and W. S. Donahoe to DeGraw, and the conveyance from DeGraw to John P. Jones, and from John P. Jones to the plaintiff, are sufficient color of title upon which to predicate an adverse possession under the statute of limitation, and if they believe from the evidence that the plaintiff, and those under whom he claims, have had the actual, exclusive, open, continuous and adverse possession as against the defendants, of any part of the tract in question, claiming the whole tract under such color of title for ten years prior to the time that defendant Williams got into possession on the _____ day of August, 1870, then such color of title and adverse possession would vest the absolute title in the plaintiff, and the jury are bound to find their verdict for the plaintiff.

4. The jury are instructed that a possession once shown to exist is presumed to continue until the contrary is shown, and they are further instructed that to constitute possession, it was not necessary that the plaintiff, or those under whom he claims, should live on the land or keep any person thereon, but that any acts done on the premises indicating an intention to hold the land, is sufficient.

Defendants asked the following instructions:

1. The jury are instructed that it is admitted that the land in suit was patented to Jonathan Floyd by the United States, and defendants have shown a perfect chain of title from one Thomas Floyd, claiming to be an heir of patentee, and if the jury believe that said Thomas Floyd is the only heir at law of Jonathan Floyd, they are bound to find for defendants, unless plaintiff, or those under whom he claims, were in the actual, open, adverse and continuous and exclusive possession of said premises, under color of title for ten years, next before defendant Erskine, and those under whom he claims, may have been in possession thereof under claim and color of title to said premises.

2. If the jury believe from the evidence that Wm. Brewer occupied the land as tenant of Donahoe, and he turned the possession over to his son, and he to Reams, then Reams was tenant of Donahoe, and no sale by him (Reams) to DeGraw, could prejudice Donahoe's right to the possession, and this right of Donahoe's possession having been transferred to defendant Erskine, by color of title from Donahoe, they are bound to find for the defendants.

3. Before the jury can find that plaintiff, and those under whom he claims title, were in the actual, open, notorious, continuous and adverse possession of the premises here sued for, for ten years or more before the possession was taken by defendant Erskine, they must find that such possession was continuous as well as adverse, and if they further find that there was a break in such possession, or that said premises were not in the possession of any one for one or more years during that time, that the same was not continuous.

4. The burden of proof in this case devolves upon the plaintiff, and unless said plaintiff has established the issues in this case in his favor by a preponderance of the evidence, and to the satisfaction of the jury, they will find their verdict for the defendants.

5. If the jury believe that in 1858 William Brewer took and held possession of the lands in dispute as the tenant of W. S. Donahoe, from that time up to about 1864, and then turned said possession over to Reams, and that Reams kept and held said possession up to February 10th, 1866, and then transferred the same to Hamilton DeGraw, then the jury are instructed that the sheriff's deed to Stephenson transferred and conveyed said premises to said Stephenson, and the deed from said Stephenson to defendant Erskine transferred and conveyed said possession to said defendant, and they will find for defendants.

6. The jury are instructed that if they believe from the evidence that W. S. Donahoe was, by himself or tenants, in possession of the land in controversy up to the 10th day of February, 1866, and that prior to that date the same had been sold under execution against him, and a sheriff's deed made to the purchaser, and the purchaser conveyed to Erskine, one of the defendants, such conveyance conveyed to Erskine the constructive possession and a right to the occupancy as against Donahoe; and if they further find that after that date DeGraw, under whom plaintiff claims, bought Donahoe's possession and held the premises, then they are bound to find for defendants, unless they find from the evidence that Donahoe and Erskine had wholly abandoned the possession prior to ...