McDonald v. Schneider

• Decision Date: 31 October 1858
• Citation: 27 Mo. 405
• Parties: MCDONALD, Plaintiff in Error, v. SCHNEIDER, Defendant in Error.
• Court: Missouri Supreme Court

27 Mo. 405

MCDONALD, Plaintiff in Error,

v.SCHNEIDER, Defendant in Error.

Supreme Court of Missouri.

October Term, 1858.

1. Under the act of December 22, 1824 (R. C. 1825, p. 211), the trustees of the town of St. Charles had power to lease the common of the town.

2. It is not sufficient to invalidate such a lease that it was executed in the name of the trustees of the town, and not in the name of “The inhabitants of the town of St. Charles”--the corporate name of the town.

3. In order that a defendant may defeat a recovery in an action of ejectment by showing an outstanding title in a third person, such outstanding title so set up must be a present, subsisting and operative title, such an one as the owner thereof could recover on if he were asserting it in an action.

4. Possession of land is presumed to be in the true owner. Being presumed to be in the possession of the whole, another entering upon him, whether under color of title or not, can acquire title as against him, under the statute of limitations, only to such portion as is actually occupied by him for twenty years adversely to the true owner; he is confined to his actual adverse possession, and the burden is on him to show such actual adverse possession and its extent.

Error to St. Charles Circuit Court.

This was an action of ejectment to recover a portion of lot numbered 24, in block 8, in St. Charles common. The plaintiff claimed, under the town of St. Charles, a leasehold interest in the premises in controversy for 999 years. In support of his title--after showing that the land sought to be recovered was embraced within the United States survey, approved in 1854, of the outboundary lines of the town of St. Charles, including the common confirmed to said town by the act of Congress of June 13, 1812--adduced in evidence, against the objection of defendant, a lease for 999 years, dated June 18, 1831, to one Wardlaw. This deed of lease is executed in the name of the trustees of the town of St. Charles, and is signed by the clerk of the board of trustees, and has the corporate seal attached by him. It seems to have been first issued in favor of one James B. Bradley, whose name appears to have been afterwards obliterated, and the name of Wardlaw to have been substituted under an order of the board of trustees to that effect. On the 19th of September, 1834, said Wardlaw assigned said lease to Pleasant Gordon, who assigned the same to one Orrick, who made an assignment to the plaintiff. On the 22d of March, 1839, the board of trustees, by a deed of lease executed in the same manner as the first, again leased said lot to plaintiff. Plaintiff and those under whom he claims have paid the rent reserved.

The defendant claims title in right of his wife to the premises in controversy as being a portion of the northeast fractional quarter of section four, township 46 north, range 4 east. This fractional quarter section overlaps in part the southwest corner of the common of St. Charles. It was entered in the office of the register April 30, 1832. The patent is dated September 2, 1835. The evidence showed that plaintiff and those under whom he claims had been in possession of lot No. 24 from the date of the lease to Wardlaw, and that defendant had been in possession of fractional quarter section four from about the time of the entry thereof; but the testimony with respect to the actual occupancy of the overlapping portions of the two tracts was conflicting. The testimony showed that Bradley, soon after the date of the deed of June 18, 1831, left St. Charles, and that he never took possession of the said lot No. 24.

Numerous instructions were given and refused; the following embrace those referred to in the opinion of the court, which were given at the instance of the defendant: “2. The jury are also instructed that if they believe from the evidence in the cause that the lease aforesaid [that of June 18, 1831,] was executed and delivered to the said James B. Bradley by the board of trustees of the town of St. Charles, the legal effect of said lease was to divest, for the period of time mentioned in said lease, whatever title the town of St. Charles had in and to the premises therein mentioned, and that the title thus divested could not, during the term of said lease, be re-vested in said corporation, except by a re-conveyance, in writing, by said Bradley, or his assignee, to said corporation, or by a judicial decree of some court of competent jurisdiction; and there is no legal evidence, either of such re-conveyance or decree. 3. If the jury find, from the evidence in the cause, that Augusta Boschet, alias Lively, on the 30th day of April, 1832, entered, at the land office of the United States, at St. Louis, the northeast fractional quarter of section 4, township 46 north, range 4 east; that the defendant afterwards, in the year 1832, married said Augusta, and in virtue of said entry at the land office aforesaid, entered in said year upon a part of the said fractional quarter section, claiming title to the whole, erected a dwelling-house thereon, and cleared, put under fence and cultivated a part thereof, and openly resided upon the same, and openly cultivated parts thereof continuously for the period of twenty years next before the institution of this suit; and the jury shall also find from the evidence that the land in controversy is included within the limits of said fractional quarter section, they will render their verdict for the defendant for such parts of said quarter section now in dispute as the said defendant held and occupied as aforesaid, unless they shall also find from the evidence that the land in controversy was, within the said twenty years, in the actual open adverse possession of another. 4. The jury are further instructed that if they find, from the evidence in the cause, that the lease, bearing date June 18, 1831, read in evidence, was by the board of trustees of the town of St. Charles, executed and delivered to said James B. Bradley, by the said board or their agent; and afterwards, during the continuance of the term specified in said lease, the said board of trustees ordered their clerk to erase the name of said Bradley from said lease and insert the name of Hugh H. Wardlaw instead, and their clerk obeyed said order, and made the erasure in the absence of said Bradley, and without his knowledge; and the said board of trustees caused the said lease, after the said erasure, to be delivered to the said Wardlaw, such an alteration and delivery was an illegal and unauthorized spoliation of the lease, which did not destroy or affect the right of Bradley to the lease as a muniment of his title to the premises conveyed by it, nor vest in said Wardlaw any title to said premises, nor enable him to assign the same to Gordon; and in case the jury find the fact of erasure as specified in this instruction, they will render a verdict for the defendant. 5. The defendant asks the court to instruct the jury that, upon the case made by the plaintiff, he cannot recover in this action.”

The plaintiff took a non-suit with leave, etc.

Wells and Krekel, for plaintiff in error.

I. The trustees had power to lease the commons. (R. C. 125, p. 766; 2 Terr. Laws, 296, 410; Sess. Acts, 1837, p. 306.) Misnomer does not invalidate. (Grant on Corp. 65; Angell & Ames on Corp. pp. 78, 194, 584; 2 Kent Com. 292; 19 Mo. 613.) The corporation has recognized the validity of the lease by renewing it and collecting rents.

II. Plaintiff's entering on part of lot 24, in 1833, stopped the statute from running. (5 Litt. 89, 90; 4 Barr, 254.) The defendant is limited to the possession he had twenty years prior to the bringing of this suit. (5 Dana, 65; 1 Hill, 135; 2 Harr. & Jo. 380; 10 Mo. 769; 20 Penn. 32; 2 Bibb, 508; Angell on Limitation, 432, 443.) The defendant must show the extent and boundary of his possession.

III. Bradley could not recover on the title set up as outstanding in him. It was barred by the statute of limitations. It is not a living, subsisting title. (1 Mary. 234; 2 Har. & Jo. 125; 1 Swan, 519; 3 Johns. 386; 18 Mo. 522; 6 Pet. 302; 9 Yerg. 325; 4 Johns. 202.) The instructions given for the defendant were erroneous.

U. Wright, for defendant in error.

I. Plaintiff's case failed upon his own showing. The proof was that the title was in another. (R. C. 806; 19 Mo. 132; 1 Parsons on Contr. 118; Angell & Ames on Corp. 293; 12 Wheat. 64; 6 Peters, 452; Comb's case, 9 Co. 76, b.; 11 Mo. 209; 4 Bac. Abr. 140; 16 Mo. 42; 2 Cush. 337; Story on Agency, 147; 1 Amer. Lea. Cas. 597.)

SCOTT, Judge, delivered the opinion of the court.

We do not see the force of the objections to the deed of lease made by the trustees of the town of St. Charles to Wardlaw. It is under the seal of the corporation. The common seal is proved. It is also shown that it was affixed by the clerk of the board of trustees, who was authorized thereunto by...