Matney v. Graham

• Decision Date: 28 February 1875
• Citation: 59 Mo. 190
• Parties: JAMES A. MATNEY, Respondent, v. FRANCIS GRAHAM, et al., Appellants.
• Court: Missouri Supreme Court

59 Mo. 190

JAMES A. MATNEY, Respondent,

v.FRANCIS GRAHAM, et al., Appellants.

Supreme Court of Missouri.

February Term, 1875.

Appeal from Buchanan Circuit Court.

B. F. Loan, for Appellants.

I. The doctrine that neither party in an ejectment need go back of a common source of title on which both rely, has no application where, as in case at bar, defendant relies simply on his adverse possession. (Macklot vs. Dubreuil, 9 Mo., 477; Page vs. Hill, 11 Mo., 150.)

II. And plaintiff cannot defeat such possession by purchasing a subordinate title. But defendant being in possession may buy in any title in order to strengthen such possession, and will not be put in a worse position because his title proves subordinate and worthless.

In this case the common source of title has neither possession nor right of possession; hence, Brown vs. Brown, (45 Mo., 548); Fellows vs. Wise, (49 Mo., 350,) has no application.

Ringo & Vories, for Respondent.

I. The facts showing a common source of title, the title of the grantor cannot be denied. (Chouquette vs. Barada, 33 Mo., 249; Merchants' Bank vs. Harrison, 39 Mo., 433; Fugate vs. Pierce, 49 Mo., 441; Union Bank vs. Manard, 51 Mo., 548; Fellows vs. Wise, 49 Mo., 350; Brown vs. Brown, 45 Mo., 412; Tyl. Ej., 543, 557-8; 2 Greenl. Ev., § 307.)

II. The appellant claims under Hays and not Mrs. Noble, (same case, 50 Mo., 559,) and an outstanding title in her cannot avail him. (Fellows vs. Wise, 49 Mo., 350; Brown vs. Brown, 45 Mo., 412; Union Bank vs. Manard, 51 Mo., 548.)

NAPTON, Judge, delivered the opinion of the court.

This was an action of ejectment. The plaintiff claimed title from one Hays and attempted to trace title from Hays back to the United States; but in the opinion of the court that tried the case he failed in showing title in Hays. This chain of title is not preserved in the record and no question arises on it, and this court can, of course, give no opinion concerning it.

The plaintiff established a possession in Hays in the year 1866, which, however, was abandoned before the plaintiff purchased under execution and received a sheriff's deed in 1869. This execution was on a judgment against Hays in 1864.

The plaintiff then proceeded to prove that in 1868. Hays had made a deed of trust to one Self, to secure Burnside, (who was the defendant, Graham's landlord,) and that under a sale made by Self, Burnside became the purchaser and took possession of the lot.

Upon this evidence the court instructed the jury: 1st. That the sheriff's deed to James A. Matney for said lot 3 in block 4. vests prima facie all the title of said Hays in and to said lot; and that the deed of trust read in evidence from said Hays to Self, to secure Burnside in the payment of the note therein named of Jan'y 8, 1868, was subject to the lien of the judgment of plaintiff of June 30, 1864; and that the sale under said deed of trust and purchase by Burnside under the sale did not divest plaintiff's lien and give said Burnside a title superior to that of plaintiff to said lot--provided the jury believe from the evidence that Burnside, at the time of his purchase, knew that plaintiff, Matney, had purchased said lot at sheriff's sale under his judgment against Hays; 2nd. If the jury believe from the evidence that Burnside, after his purchase of said lot under the deed of trust from Hays to Self, took possession of it solely under and by virtue of such purchase and claiming said land solely under said purchase, and put the defendant, Graham, into possession of said land as his tenant, and Graham made no claim to said lot or the possession thereof, except as tenant aforesaid, then said defendant is estopped from denying title in said Hays and the jury will find for plaintiff, provided they further find that defendant, Graham, was in possession of lot 3, etc., at the commencement of this suit, and that Burnside purchased with notice of plaintiff's title.

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