Mather v. Walsh

• Citation: 17 S.W. 755,107 Mo. 121
• Parties: Mather, Appellant, v. Walsh et al
• Decision Date: 23 November 1891
• Court: United States State Supreme Court of Missouri

17 S.W. 755

107 Mo. 121

Mather, Appellant, v. Walsh et al

Supreme Court of Missouri, First Division

November 23, 1891

Appeal from Jackson Circuit Court. -- Hon. Turner A. Gill, Judge.

Plaintiff sues in ejectment for part of lot 27, block 6, of "Peery Place," in Kansas City, Missouri. His claim rests in part upon conveyances, and in part upon adverse possession under the limitation law. The defendants' title stands wholly upon adverse possession.

The defendants are Mrs. Johanna Maloney, her husband, Mr. James J. Maloney, and certain tenants of the former.

The pleadings require no special notice. They were in usual form raising the issues that were tried. The cause was heard with the aid of a jury and resulted in a finding and judgment for defendants.

The instructions mentioned in the opinion of the court are indicated below:

At defendants' request the court gave (among others) the following: "1. If the jury find from the evidence that defendant, James J. Maloney, has had and held, by himself and by the tenants of his codefendant, Johanna Maloney, the actual and peaceable, open and notorious, continuous and exclusive possession of the premises in controversy, under an exclusive claim of right thereto in his wife and codefendant Johanna Maloney, hostile and adverse to the claim of plaintiff to said premises, for more than ten years next before the commencement of this action, then your verdict must be for the defendants."

The court refused to give either or any of the following instructions asked by the plaintiff: "15. The jury are instructed that, to confer title, possession must not only be open, notorious and continuous, but it must also be adverse. There must be an ouster or disseizen of the true owner, and an intention to claim the title, and this intention must have existed during the entire period of such possession. If you believe that when Maloney took possession of lots 28, 29 and 30 under the deed from Mrs. King he thought the vacant lot on the north side of his residence (lot 27) was a part of the ground he had purchased, yet, if he intended to claim only the ground he actually bought from Mrs. King as described in his deed and did not intend to claim any other lots than those called for in that deed, and used lot 27 as a yard or garden under the impression that it was a part of the ground he had bought from Mrs. King, then such possession of lot 27 was not a disseizen of plaintiff, and his possession thereof could never ripen into a title by lapse of time. If they intended to claim title only up to the north line of the lots named in their deed from Mrs. King, the fact that they thought the north line of lot 27 was their north line would give them no title by adverse possession to lot 27.

"16. The jury are instructed that an intention to oust or disseize the true owner and to claim his title is not to be presumed from the mere fact of sole possession of the occupant. And though you may believe Maloney has been in the sole possession of lot 27 for more than ten years before the filing of this suit, yet, unless such possession was held with an intention of claiming the title as against all the world, and was accompanied by an open and notorious claim of exclusive ownership and right, they should find for the plaintiff.

"17. If the jury believe from the evidence that plaintiff, at the date of the last tax deed hereinafter mentioned, was the owner of the premises sued for herein; that said premises were sold by the city for delinquent taxes; that defendant Maloney obtained a certificate of purchase of said premises from the auditor of Kansas City, dated August 18, 1876, and on November 6, 1877, obtained a tax deed thereto dated on said November 6, 1877, they are instructed that such purchase and acceptance by defendant Maloney was an admission that on the date of said tax deed plaintiff was the owner of said premises, and defendants are not allowed to deny plaintiff's title at said date. The purchase for taxes and the acceptance of said tax was an admission that Maloney did not, at the date of said deed, own said premises, and that whatever occupancy defendants had at the time was subservient to, and in recognition of, the title of the owner of said lot. Defendants cannot, if they procured and accepted said deed, set up any adverse possession of said premises prior to the date of said deed. If you believe that plaintiff was the owner of the lot sued for at the date of said tax deed, and that defendants accepted said deed, plaintiff is entitled to recover unless defendants show that said deed divested plaintiff's title, or that his title has been destroyed in some other way. And it could not in such case have been destroyed by adverse possession thereof for ten years between the date of said tax deed and the filing of this suit.

"18. If the jury believe from the evidence that plaintiff, in 1872 or 1873, owned lot 27 and resided on the lot adjoining it on the south; that he obtained title to lots 27, 28, 29 and 30 by the same deed; that at that time lot 27 was inclosed by a substantial fence; that when plaintiff removed from said premises said lot remained so inclosed by said fence; that said fence was still standing around said lot at the time Maloney removed into the residence once occupied by plaintiff; and from the time plaintiff left said premises until a house was built on said lot in 1886, if one was built there at that time, said fence remained upon said lot, and there was no more visible use and occupation of said lot after Maloney claimed it than there was before, until said house was built thereon, then the jury are instructed that Maloney's possession thereof, if any, could only date from the time said house was built.

"19. The court declares the law to be that defendants have shown no color of title to the property in question in this action on which to base their plea of adverse possession under the statute of limitations; and the finding must be for the plaintiff for the property.

"20. Under the pleadings and the evidence, the jury must find for the plaintiff for the property in question."

The court gave seven instructions, requested by plaintiff, but they were not excepted to, and need not be quoted.

The other necessary facts are stated in the opinion of the court.

Affirmed.

William C. Forsee and Samuel P. Forsee for appellant.

(1) Appellant's fifteenth instruction should have been given. Maloney's evidence furnished an ample basis for it. If he intended to claim only the lots named in his deed, his possession, if any, of lot 27 was not adverse. Huckshorn v. Hartwig, 81 Mo. 648; Walbrunn v. Batteen, 68 Mo. 164; University v. McCune, 28 Mo. 481; Cole v. Parker, 70 Mo. 372; Howard v. Reedy, 29 Ga. 154; Brown v. Cockerell, 33 Ala. 45; Wood on Lim., sec. 263, p. 548. (2) Appellant's sixteenth instruction should have been given. The last clause is unobjectionable, because the undisputed evidence shows, first, defendant entered under plaintiff's tenants; second, that plaintiff was also the prior possessor under claim and color; third, that defendant, by entering and claiming under purchase from King admitted title in Berkeley, the common source. Hence, if defendant did not intend to claim adversely, he could not defeat plaintiff. University v. McCune, supra; McGee v. McGee, 37 Miss. 152; Grube v. Wells, 34 Iowa 149, 150; Jackson v. Thomas, 15 Johns. 292; Jackson v. Frost, 15 Cow. 350, 351; Miller v. Shaw, 7 S. & R. 129; Clark v. Courtney, 5 Pet. 320; Wood on Lim., p. 513; 3 Wash. R. P. [4 Ed.] pp. 129, 136, 137. (3) Appellant's seventeenth instruction should have been given. Maloney's possession could in no event commence under the tax purchase until the date of the deed. The acceptance of the deed was an admission of plaintiff's title. Pease v. Lawson, 33 Mo. 35; DeGraw v. Taylor, 37 Mo. 310; Grandy v. Casey, 93 Mo. 605; Rice v. White, 8 Ohio 216; Hoyt v. Dillon, 19 Bush, 644. (4) Plaintiff's eighteenth instruction should have been given. Possession must be visible, patent, notorious. Chapman v. Templeton, 53 Mo. 465; Spurlock v. Dougherty, 81 Mo. 184; Pike v. Robertson, 79 Mo. 618; Norfleet v. Hutchings, 68 Mo. 598; DeGraw v. Prior, 60 Mo. 56; Jackson v. Shoemaker, 2 Johns. 234; Doolittle v. Tice, 41 Barb. 181; Olewine v. Messmore, 128 Pa. St. 470; Ruffin v. Ownby, 105 N.C. 78; Word v. Box, 66 Tex. 596. (5) Appellant's nineteenth instruction should have been given. Maloney had no actual possession of lot 27. He could have no constructive possession of it without color. St. Louis v. Gorman, 29 Mo. 593; Chapman v. Templeton, 53 Mo. 465; Clark v. Courtney, 5 Pet. 320; Miller v. Shaw, 7 S. & R. 135; Angell on Lim. 420, 421; Adams on Eject. 582, 572, (6) Appellant's twentieth instruction should have been given. The undisputed evidence established plaintiff's right to recover. Smith v. Lindsey, 89 Mo. 76; Grandy v. Casey, 93 Mo. 604; Huff v. Morton, 94 Mo. 408; Prior v. Scott, 87 Mo. 303; Riverside, etc., v. Townsend, 120 Ill. 9; Jones v. Bland, 116 Pa. St. 190; Shafine v. Snow, 150 Mass. 262; Pulliam v. Burlingame, 81 Mo. 116; Doe v. Hooper, 81 Ala. 391; Holman v. Bonner, 63 Miss. 131; Hughes v. Israel, 73 Mo. 548; Olewine v. Messmore, 128 Pa. St. 470; Leeper v. Baker, 68 Mo. 405; Miller v. Downing, 54 N.Y. 631.

Botsford & Williams and George F. Ballingal for respondents.

(1) Appellant's fifteenth instruction was properly refused. Respondents' possession was adverse to the whole inclosure, even though they may have erroneously supposed the lot in controversy was included in the conveyance. Walbrunn v. Ballen, 68 Mo. 164; Cole v Parker, 70 Mo. 379; McAninch v. Smith, 19 Mo.App. 243; Stocker v. Green, 94 Mo. 280; Mississippi Co. v. Vowels, 101 Mo. 225. It is not necessary, in order to disseize the...