McElhinney v. Kraus

• Citation: 10 Mo.App. 218
• Parties: ALEXANDER MCELHINNEY, Respondent, v. JOHN KRAUS ET AL., Appellants.
• Decision Date: 12 April 1881
• Court: Court of Appeal of Missouri (US)

10 Mo.App. 218

ALEXANDER MCELHINNEY, Respondent,

v.JOHN KRAUS ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 12, 1881.

1. In an action of ejectment certified copies of the records of ancient archives are competent.

2. The doctrine of constructive possession applies to one who takes actual possession under color of title; and, under that doctrine, he is held to be possessed of the contiguous lands covered by the deed under which he enters, and which he claims by virtue of that instrument, provided there is no actual adverse possession of any part of the tract.

3. Where there is a deed, though the description be indefinite, which purports to convey the whole, and the survey made by the grantee and the recorded plat describes the exact tract claimed under the deed, and there is some evidence of constant, continuous acts of ownership over the whole; that the recorded plat subdivides the tract is not conclusive that the actual possession maintained through one employed to warn trespassers off the whole tract, is possession of only the subdivision on which the house is situated.

4. In such a case it is for the jury to say whether he took possession of a part of the tract, intending to take possession of the whole, under that deed, and whether he exercised acts of ownership, openly and notoriously claiming, under that deed, the entire tract of contiguous lands purporting to be conveyed thereby.

APPEAL from the Circuit Court of St. Louis County, EDWARDS, J.

Reversed and remanded.

RUDOLPH SCHULENBURG and HEYMAN LEVIN, for the appellants: It is error to admit in evidence a conveyance in which the description of the property is so indefinite and uncertain as to render it void.-- Vasques v. Richardson, 19 Mo. 96; Bell v. Dawson, 32 Mo. 79; Holme v. Strautman, 35 Mo. 293; Hardy v. Mathews, 38 Mo. 121; Campbell v. Johnson, 44 Mo. 247. Plaintiff claiming title under Reuben S. Bacon's heirs, cannot question or impeach the decree rendered against them in the St. Louis Land Court, in collateral proceeding, but would have to do so directly.--Freem. on Judg. 130; Freeman v. Thompson, 53 Mo. 183; Lenox v. Clare, 52 Mo. 116; Runpelt v. O'Brien, 57 Mo. 570; Ellis v. Jones, 51 Mo. 180; Jeffries v. Wright, 51 Mo. 215. The instruction offered by the plaintiff and given is clearly erroneous.-- Draper v. Shoot, 25 Mo. 197; Eugate v. Pierce, 49 Mo. 441; Turner v. Hall, 60 Mo. 271; Leper v. Baker, 68 Mo. 400; Lynd v. Williams, 68 Mo. 360; Long v. Higginbotham, 56 Mo. 245; Norfleet v. Hutchins, 68 Mo. 597.

A. MCELHINNEY, pro se: The instruction complained of is substantially the same as one approved by the Supreme Court in Turner v. Hall, 60 Mo. 271. Surely, defendants' actual possession of one lot, of their own subdivision, indicates an adverse claim to no more than one lot. This is only the more obvious, because each of the lots constitutes a large farm.-- Leper v. Baker, 68 Mo. 400; Tyler on Eject. (1877) 900; Jackson v. Woodruff, 1 Cow. 276; Jackson v. Richards, 6 Cow. 617; Griffith v. Schwenderman, 27 Mo. 412; St. Louis v. Gorman, 29 Mo. 593.

BAKEWELL, J., delivered the opinion of the court.

This is ejectment for one hundred and seventy acres of land, more or less, lying in the north-western corner of United States survey 1956, bounded north partly by United States survey 909, and partly by lands of John Kraus; east by lot two of Angelrodt's subdivision, formerly of Barth; south by Duerak's; and west by the boundary line of survey 1956. Elizabeth Bartman, the lessor of defendant, was made a codefendant at her own instance. The answer is, not guilty, and the Statute of Limitations. It was stipulated that the premises are in survey 1956, reported by Bates on February 2, 1816, confirmed to James Mackey under the act of Congress of April 29, 1816, surveyed in 1818, and returned to the recorder of land-titles on January 30, 1823.

Plaintiff introduced the following documentary evidence: An instrument in the nature of an exchange of lands, dated May 10, 1799, recorded in St. Louis County on July 15, 1847, in the archives, and being archive No. 1087. This instrument is executed by Jacques Mackey, commandant, etc., in consideration of certain lands conveyed to him by John Bell, and purports to convey to John Bell two hundred superficial arpens, situate on the upper part of the river Bonhomme, joining land of William Bell on the north line of all its depth; being about twenty-five arpens deep by eight wide, and being a portion of the tract granted by the government to Mackey. Also archive No. 1084, dated November 2, 1803, recorded August 15, 1817, amongst the archives in St. Louis County, executed by John Bell, which purports to convey the land described in the next preceding instrument, to Leonard Farah. Also a deed, dated and acknowledged October 5, 1824, and duly recorded, by which Leonard Farah and wife convey to James Johnson two hundred arpens, French measure, on Wild Horse Creek, Bonhomme Township, St. Louis County, bounded north by Philip Belt, east by the heirs of James Mackey, south by Stephen Hancock, Sr., and west by parties unknown. Also, a deed from James Johnson and wife to James Bayer, dated and recorded in August, 1830, for a tract of one hundred and eighty-two and one-half acres on Wild Horse Creek, Bonhomme Township, bounded north by James Bayer, west by public land, south by Stephen Hancock's heirs, and east by land claimed by B. C. Allister. The land is further described by courses and distances, from tree to tree and stone to stone. A deed from James Bayer and wife to Reuben S. Bacon was then introduced, dated February 6, 1837, and duly recorded, for the same land described in the last deed. Lastly, plaintiff offered a deed from the widow and four of the children of Reuben S. Bacon, to plaintiff, dated February 14, 1871.

George W. Bacon testified, on behalf of plaintiff, that he knew the land in controversy; that it was the land described in the various deeds read; that the witness was born in St. Louis County in 1820. James Johnson lived on the land in controversy when witness was a boy. James Bayer, after Johnson, cultivated the lot conveyed to him, but did not live on it. After Bayer, Bacon cultivated it, and the land adjoining on the north, living on the latter. Bacon left in 1838 or 1839, and, when he left, leased the land in controversy to one Lipscombe, for a term of three or five years. Bacon has been dead twenty-five years. After the lease expired, the land was not cultivated. Only about twenty acres of the land in controversy were cultivated. After leaving, Bacon never had actual possession. His heirs lived out of the county. They consisted of a widow, Mary Ann, who died about fifteen years ago, and of seven children: John, who died leaving one child; Jane, who died leaving one child, Eugene Rule, not heard of since 1845; Charles; Virginia, married to Ellison Hill; Thomas; Benjamin, not heard of for twenty-five years; and Stephen.

Plaintiff also introduced evidence tending to show that, in February, 1871, he gave a three-years' lease of the land in question to one Davis, who took possession under his lease, built a log-house on the land, and fenced and cultivated twenty acres. Davis, on September 15, 1871, delivered possession to the agent of Barth, who claimed the land, and who paid him for his improvements. There was also evidence that the land is now in the possession of defendant Kraus, as tenant for Mrs. Bartman, under a lease at a rent of $75 a year.

At the close of plaintiff's case, an instruction in the nature of a demurrer to the evidence was overruled. Objections were interposed to all the documentary evidence.

We think that the court committed no error in refusing to take the case from the jury. The certified copies of the records of ancient archives were competent under the statute. Rev. Stats., sects. 2305, 2306, 2309; Smith v. Madison, 67 Mo. 694. We do not see that there is any such patent ambiguity in the conveyance from Mackey to Bell as must render the deed void. The description in the deed from Johnston to Bayer is certainly definite enough; and the testimony of George Bacon is, that the lot in controversy was successively in the occupation of the parties to these instruments, from Mackey to Bacon.

Defendants introduced in evidence a deed from the sheriff of St. Louis County to Alexander McAllister, dated May 16, 1825, conveying, under judgments and...