Miller v. Bledsoe
| Decision Date | 31 October 1875 |
| Citation | 61 Mo. 96 |
| Parties | ANN E. MILLER, et al., Plaintiffs in Error, v. REUBEN BLEDSOE, Defendant in Error. |
| Court | Missouri Supreme Court |
Error to Franklin Circuit Court.
R. H. Musser, with E. McElhinney, for Plaintiffs in Error.
I. The testimony goes to show a tenancy in common between plaintiffs and defendant, which would continue till an ouster; and till then no right of action accrued. As to what constitutes ouster between tenants in common, instruction No. 5 for defendant correctly declared the law, and is sustained by Paul vs. Lepeyre (47 Mo., 557).
Defendant took Hendricks' deed with record notice that Hendricks held under Alton Long, and he took nothing but Long's life estate.
There could have been no ouster as to James or his grantors till the right of entry accrued, which would not be the case till Long's death.
There is no proof of actual knowledge on the part of plaintiffs that defendant claimed an exclusive ownership, especially as against them; nor of acquiescence by them in any claim of disseizin by defendant for more than ten years.
II. Under the present statute (Wagn. Stat., 559, § 10) supposing that some of the co-tenants of plaintiff may have slept on their rights, and are barred by the statate, that fact will not compel a verdict against the co-plaintiffs not so barred, as the instructions required the finding to be. The case of Keeton's Heirs vs. Keeton, (20 Mo., 538) was prior to the enactment of the statute referred to, but decided nothing contrary to the above proposition. Nor did the case of Walker vs. Bacon (22 Mo., 144).
The real test of the right of any plaintiff in this case to recover is not, whether his co-plaintiff fails in his proof, or is suing on a cause of action he has too long neglected, and to recover rights the law presumes he has abandoned; but is it such a cause of action as he could have recovered on if he had brought a suit singly and alone?
In the face of this statute, if the ruling below is sustained, there will be no safety in bringing a joint action when there are many plaintiffs, for fear some of them may fail to recover or be barred by limitations, and the primary, original object and purpose of the act of March 13, 1849, will be defeated. Safe pleading will require, that each plaintiff sue separately; and, in the case at bar the defendant must be harassed with some twenty law suits instead of one, when the manifest purpose of the law--Act of March 12, 1849--was, to prevent multitudinous and circuitous litigation.
A. J. Seay, Crews & Halligan, for Defendant in Error.
The statute of limitations began to run in favor of Hendricks and those holding under him, from the time he took possession under his warranty deed, claiming the land as his, i. e., from November, 1851, and not from date of the patent, in 1856. Plaintiffs' right of entry accrued in 1847, when the land was entered by them, and their cause of action accrued the moment Hendricks entered under the Long deed. Then the statute commenced running.
Part, at least, of plaintiffs are barred by it, and as to them plaintiffs should have dismissed.
The 8th instruction given for defendant presented the law on the question of ouster as favorably as plaintiff could ask. .)
Neither defendant nor Hendricks were ever tenants in common with plaintiffs. Admit that Alton Long was so, he gave an absolute warranty deed without anything showing that plaintiff had an interest. Hence, defendant's possession was adverse to plaintiffs. (Bogardus vs. Trin. Church, 4 Paige Chy., 178; Jackson vs. Brick, 5 Cow., 483; 3 Watts, 77; Ang. Lim., § 532.)
To consummate Alton Long's curtesy, his wife must have had possession, and not merely the right of possession.
This is an action of ejectment to recover forty acres of land in Franklin county. There are twenty plaintiffs, who claim to represent Richard Caulk. The suit was brought on the 16th of March, 1870, and the principal defense was the statute of limitations.
The plaintiffs gave in evidence a patent from the United States, dated June 3, 1856, to Richard Caulk or his legal representatives, and to his or their heirs. This patent recited certificate No. 35 of the Surveyor General at St. Louis, whereby it appeared that the claim of Richard Caulk, or his legal representatives, is entered in the first class of the decision of the Board, under the acts of July 9, 1832, and March 2, 1833, and that after a survey No. 3,056 had been executed for said claim, it was found that 2,673 57 100 acres was interfered with by prior claims and locations, and by virtue of the second section of the act of July 4, 1836, the confirmee was entitled to locate other lands in lieu thereof, and that certain other lands had been located, (describing them) and this patent conveys the re-located lands including the one now in controversy. The plaintiffs then establish themselves to be heirs of Richard Caulk.
The defendant was then called, who said he was first apprised of this claim in 1869.
Deeds from the heirs of Sally Long, daughter of Richard Caulk, to the plaintiffs were then read.
It is unnecessary to notice the titles of Ann E. Miller, Laura P. Orr, Jannette Smith and several other plaintiffs, or the facts which might become important in deciding whether they were barred by the statute of limitation or not, as the case was decided on another point.
Lewis James, one of the plaintiffs, derives his title from the children of Alton Long, and his wife, Sally, who was, as heretofore stated, a daughter of Richard Caulk. Sally Long died in 1849, leaving five children, all of whom survived Alton Long, the father, except one. Alton Long died in 1864.
Alton Long made a deed of bargain and sale, with the usual warranty implied by the statute, in 1851, to one Hendricks, for the land in controversy. Hendricks made a deed to defendant on January 15, 1853, and the defendant went into possession then, cultivated and improved the tract, and never heard of any claim until a year or so before this suit was brought.
The tract book in Franklin county showed this land to have been a part of the lands re-located by Richard Caulk's representatives.
The instructions to the jury on the trial were substantially these:
The first instruction asked and given was, that no adverse possession prior to the patent would avail defendant.
The second instruction was, in substance, that although the legal title was in the United States until June 3, 1856, yet the rights of the heirs of R. Caulk, as tenants in common and by curtesy attached in the equitable and inchoate title from and after the entry and certificate of new location on August 31, 1847. This was also given.
The fourth instruction asked by the plaintiffs and given, was this:
“If the jury believe from the evidence that Alton Long married the daughter of Richard Caulk, the original grantee of the land in controversy; that Richard Caulk died before his daughter, the wife of said Long, leaving six surviving children, and that Mrs. Long, the daughter by said Caulk, died in the year 1848, after children being born of said marriage, then at the time of the conveyance by Long to Hendricks, read in evidence, Long was a tenant by the curtesy of the interest of his said wife in the premises in controversy, and as such was a tenant for life, and tenant in common with the other heirs of Richard Caulk, then living, in the inchoate title therein.”
The conveyance of Long to Hendricks was in 1851, and the court gave instruction 5, which is this:
And the court gave this further instruction for plaintiffs: that “although one tenant in common may take possession of the entire premises and hold the same during the entire period of limitation, and pay taxes and make improvements on the same, yet these acts are not of themselves inconsistent with a general holding and may be explained; and the facts that the lands held in common are what is denominated ‘wild lands, and lying in detached parcels and in different counties in this State, and many of the owners of the fee being married women during the whole time, and others minors, are all legitimate subjects of inquiry in determining whether an actual ouster has been made, and the common holding revived more than ten years before suit.”
The court gave this further instruction on this point: “The jury are instructed that the legal effect of the conveyance from Alton Long to Hendricks, read in evidence, was to convey to the grantee therein, the life estate by curtesy in one undivided sixth part of the premises that the said Long acquired by virtue of his marriage and children born of the said marriage with Sally Caulk, and also the undivided one hundred and fiftieth of the premises that said Long inherited as heir at law to his deceased child and to the inchoate title that the heirs of Richard Caulk then had, and that this is the entire amount of paper title that the defendant holds in the premises.”
The court refused to give the following instructions asked by plaintiff:
1. “If the jury believe that Ann E. Miller and others,” (naming...
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