Menkens v. Blumenthal

• Decision Date: 31 March 1858
• Parties: MENKENS, Appellant, v. BLUMENTHAL, Respondent.
• Court: Missouri Supreme Court

27 Mo. 198

MENKENS, Appellant,

v.BLUMENTHAL, Respondent.

Supreme Court of Missouri.

March Term, 1858.

1. Where a plaintiff in an action of ejectment bases his right to recover upon a title required by an adverse possession for twenty years, it is not necessary that his possession, or that of those under whom he claims, should be connected with the possession of previous occupants by instruments in writing; the continuity of the possession may be shown by any testimony that is legitimate and pertinent.

2. A division line mistakenly located and agreed upon by adjoining proprietors will not be held binding and conclusive upon them if no injustice be done by disregarding it.

3. A deed conveyed all the interest of the grantor in his father's estate or lands “near St. Louis;” held, that it might be shown that the father possessed land nearer St. Louis, and more appropriately within the description of the deed of the son, than that sought to be comprised within it.

Appeal from St. Louis Land Court.

This case has heretofore been before the Supreme Court. (See 19 Mo. 496.) Plaintiff seeks to recover in this action a lot in the city of Carondelet, in block No. 53. The lot sought to be recovered is seventy-five feet front on Second street by one hundred and sixty feet in depth, and is a part of the southeast quarter of said block as surveyed, its northern line being the line of division between the northeast and the southeast quarters of said block. In support of his title the plaintiff introduced in evidence a confirmation certificate issued by Recorder Hunt to Amable Guion, or his legal representatives, for lot in block 31 (now 53), 150 feet by 300, bounded north by Second street, east by Church street, south by balance of square, and west by Third street--a deed from eight heirs of A. Guion to V. Guion for the northeast and northwest quarters of block 53, as laid down on the plat of survey of the town of Carondelet--a deed from V. Guion to C. D. Drake for the same lot, with the same description--a deed from Drake to Wilson Primm for an undivided one-half of said lot--a deed from Drake to McDonald for one-half of said lot--a partition between Primm and McDonald's heirs; in this partition the eastern half (northeast quarter of the block) of the lot was assigned to Primm--a deed from Primm to plaintiff Menkens conveying a lot 150 feet square, French measure, bounded north by E street, east by Second street, south by the balance of the square, and west by McDonald's heirs--a deed from Antoine Guion (one of the eight heirs of Amable Guion) to Wilson Primm, conveying all his interest in his father's estate and lands near St. Louis--a deed from Joseph Guion to W. Primm for all his interest in his father, Amable Guion's estate--a deed from Primm, dated October 21, 1854, to plaintiff, conveying the lot in dispute. The plaintiff then introduced evidence with a view to show that Amable Guion had cultivated and possessed this lot prior to December 20, 1803; that it was in possession of said Guion and his heirs up to 1839, when it was sold to Primm and Drake; that Primm took possession of the lot and held it until he sold it to plaintiff in 1851; that plaintiff took possession in 1851. Plaintiff also introduced evidence with reference to the running of a partition line by Primm and Josette Wilson, who claimed title under the Hunot confirmation. (See below opinion of the court.)

The defendant then showed a confirmation to Gabriel Hunot's legal representatives of a lot in block 53, 150 feet by 300 feet, bounded south by F street, and north by the balance of the square. The defendant claimed title under this confirmation. The United States survey of the confirmation to Hunot's legal representatives embraced the lot in controversy; it corresponded with the survey of block No. 53 by Eiler. Evidence was also adduced by defendant bearing upon the possession of the lot by Guion and his representatives; also a deed from Bartholomew Guion to Wilson Primm for a tract of land of fifty arpens situate near the water-works of the city of St. Louis.

The defendant offered in evidence a deed from defendant Blumenthal to W. Bernard conveying the northern part of the northeast quarter of block No. 54, which lies next south of block No. 53. The court rejected said deed as incompetent.

The following is the eighth instruction (given at the request of defendant) referred to in the opinion of the court; “8. To enable the plaintiff to recover on the ground of adverse possession for twenty years by himself and those through whom he claims against the defendant, is possession under a confirmation from the United States under act of Congress of June 13, 1812, it is necessary to make out proof of actual possession of the premises in dispute for twenty connected years of time unbroken. If the plaintiff, in order to make up such twenty years' unbroken time, has to connect his possession with that of another person, he can obtain the benefit of the possession of such other person only by having a written contract or conveyance of such person for the land in question; and even though the plaintiff may show such twenty years' possession of the premises in dispute by the heirs of Amable Guion when they conveyed to Vincent Guion, yet that will not avail him without such written transfer vesting in him, or entitling him to their interest in the land so possessed by them.”

Numerous instructions were given to the jury; it is deemed unnecessary to set them forth.

The jury found for the defendant.

Whittelsey, for appellant.

I. The court erred in refusing to admit the deed from defendant to William Bernard. It tended to show that defendant recognized lines of the old possession and claim of Guion. The court also erred in admitting the deed of Bartholomew Guion to Primm. The court erred in refusing the first instruction asked by plaintiff. The land was confirmed to the legal representatives of Guion. Two of those heirs conveyed all their interest in their father's estate to Primm. Primm had then title under them to one-fourth; that he conveyed to plaintiff.

II. The defendant, and those claiming under Josette Wilson are estopped to deny that the line surveyed and adopted by the parties was the dividing lines of the quarters of said block; the second instruction should have been given. (Joyal v. Rippey, 19 Mo. 660; Taylor v. Zepp, 14 Mo. 482; Blair v. Smith, 16 Mo. 273; Rockwell v. Adams, 7 Cow. 761; 7 Johns. 245; 17 Johns. 29; 12 Wend. 421.)

III. Successive possessions under the statute of limitations, if passed by consent from one party to another, will make a continuous possession good under the statute, and the possessions need not be passed by writing to enable the possessor to avail himself of the statute. The eighth instruction is erroneous. Possessions may be tacked without deed. (13 Johns. 118; 1 Johns. Cas. 36; Cunningham v. Patton, 6 Barr, 126; Valentine v. Cooley, 1 Meigs, 613; 5 Barr, 126; Fanning v. Wilcox, 3 Day, 269; 7 S. & R. 173; Shannon v. Kinney, 1 A. K. Marsh. 3; 2 id. 620; Cook, 366; Napier v. Simpson, 1 Tenn. 448; Ludlow's heirs v. McBride, 3 Ham. 240; Jackson on Real Actions, 45; Porter v. Perkins, 5 Mass. 236; Allen v. Rivington, 2 Saund. 111; Crockett v. Morrison, 11 Mo. 3; Denn v. Barnard, Cowp. 597; Jackson v. Harder, 4 Johns. 202; 1 Tenn. 515.)

IV. The ninth instruction was erroneous. The admissions of a party in possession are evidence against himself and those claiming under him. Declarations as to a dividing line, as well as the acts of the parties, are evidence. (Adams v. Rockwell, 16 Wend. 285; Bradstreet v. Pratt, 17 Wend. 44; Blair v. Smith, 16 Mo. 272; Taylor v. Zepp, 14 Mo. 482; 19 Mo. 660.) The first, second, fourth, sixth and tenth instructions are also erroneous. (See Janis v. Gurno, 4 Mo. 458); also, generally, 2 Bl. Comm. 297, 312; 4 Kent Comm. 450; 10 Mo. 260; 7 Mo. 569; 19 Mo. 132; 20 Mo. 81.

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