Mattison v. Ausmuss

• Decision Date: 31 August 1872
• Citation: 50 Mo. 551
• Parties: AARON MATTISON, Plaintiff in Error, v. JAMES P. AUSMUSS, Defendant in Error.
• Court: Missouri Supreme Court

50 Mo. 551

AARON MATTISON, Plaintiff in Error,

v.JAMES P. AUSMUSS, Defendant in Error.

Supreme Court of Missouri.

August Term, 1872.

Error to Linn Circuit Court.

G. D. Burgess, for plaintiff in error.

Both defendant and plaintiff claim title under Peter Ausmuss, and the defendant will not be permitted to deny that he had title after buying from him. (11 Moore, 394; Brown v. Brown, 45 Mo. 415; Jackson et al. v. Walker, 7 Cow. 637; Whiteside v. Jackson, 1 Wend. 419; Galloway v. Finley et al., 12 Pet. 294; 2 Greenl. Ev., § 305; Jackson v. Norris, 7 Cow. 717; Hamilton v. Taylor, Litt. Sel. Cas. 444; Doe v. Burton, 6 Eng. Law & Eq. 325.)

A. W. Mullins, for defendant in error.

I. Neither the plaintiff nor the defendant having shown legal title to the premises in question, the party showing the elder possession was entitled to prevail. (Schultz v. Arnot, 33 Mo. 172.)

II. If the transaction between the plaintiff and Peter Ausmuss was fraudulent on the part of the plaintiff, he ought not to be permitted to profit by his fraud. And this question could properly be raised in this action. (Bobb v. Woodward, 42 Mo. 482, 488; Peyton v. Rose, 41 Mo. 262; Herm. Estop. 240.)

III. The point insisted on by counsel for plaintiff, that by accepting the deed from Peter Ausmuss, dated 17th of June, 1869, the defendant is estopped from denying that said Peter was then the owner of the land, is not well taken. The defendant was in the absolute possession of the land prior thereto, and claiming under an entirely different title. (Landes v. Perkins, 12 Mo. 258-259; Cutter v. Waddingham, 33 Mo. 269-289, and cases cited; Herm. Estop. 387, § 380; Sparrow v. Kingman, 1 N. Y. 242; Averill v. Wilson, 4 Barb. 180, 191; Osterhout v. Shoemaker, 3 Hill, 513, 518.)

BLISS, Judge, delivered the opinion of the court.

In an action for possession of a quarter-section of prairie land, the plaintiff first showed a quit-claim deed from one Moore, dated April 17, 1869; that Moore had before erected a cabin upon the land, and that he, the plaintiff, went into possession and made improvements. He also, in order to estop the defendant from setting up an adverse right, offered in evidence a quit-claim deed from himself to one Peter Ausmuss, dated June 16, 1869, and a trust deed to secure the consideration of the same, together with a deed to the plaintiff from the trustee, and also a deed of the same premises from said Peter to the defendant, dated June 17, 1869.

In behalf of defendant it was shown that said Peter Ausmuss and his son, the defendant, took possession of the land in 1868, under a written contract of sale from one B. Lombard to said Peter; that the contract was intended to be for the benefit of both said Peter and the defendant, and they had joint possession of a part of the land and planted a crop, claiming the whole under said contract; that they were so in possession when the defendant entered upon another portion of the land under said Moore; that in order to perfect his son's title to the land, on the 16th of June, 1869, he purchased the alleged interest of the plaintiff and took his quit-claim deed, having before assigned the Lombard contract to his son, the defendant, and given him sole possession. It was also shown that the plaintiff pretended to hold a tax-title under which said Moore had entered, which he claimed was good; that the sole object of the purchase by Peter Ausmuss was to obtain said tax-title, but that it was worthless, in this: that the land had been redeemed according to law, which fact was known to him and concealed from said Peter Ausmuss, and that, at the time of the sale under the deed of trust given by him to the plaintiff, the said Ausmuss was present and proclaimed the facts.

The plaintiff claims that the following errors were committed upon the trial: first, in the admission of evidence, that the defendant held prior possession under the said contract with Lombard; and, second, in the refusal of the court to instruct the jury that defendant held under the plaintiff, through his deed to Peter Ausmuss, and was estopped from denying his right.

The court committed no error. As the parties showed no title, they relied severally upon prior possession under claim and color of right. The defendant cannot be held to have so admitted ...