Missouri Lumber & Mining Co. v. Jewell

• Decision Date: 22 December 1906
• Citation: 98 S.W. 578,200 Mo. 707
• Parties: MISSOURI LUMBER & MINING CO. v. JEWELL.
• Court: Missouri Supreme Court

98 S.W. 578

200 Mo. 707

MISSOURI LUMBER & MINING CO. v. JEWELL.

Supreme Court of Missouri. Division No. 2.

December 22, 1906.

ADVERSE POSSESSION—HOSTILE CHARACTER OF POSSESSION—EVIDENCE—SUFFICIENCY.

A person purchased improvements on land with the intention of purchasing the land from the government. He took possession of the land, and made improvements thereon with the understanding that it belonged to the government. He subsequently learned that the land belonged to a third person, and he offered to purchase it from the third person, who objected to giving a warranty deed. The third person continued to pay the taxes. There was no evidence that he was ever advised that the possession had been changed into one adverse to his title. Held, as a matter of law, insufficient to show adverse possession as against the third person.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Ejectment by the Missouri Lumber & Mining Company against C. C. Jewell. From a judgment for plaintiff, defendant appeals. Affirmed.

A. H. Livingston, for appellant. John C. Brown and Orr & Luster, for respondent.

GANTT, J.

Action of ejectment commenced July 1, 1903, for the W. ½ of the N. W. ¼ of section 29, township 30, range 6, Shannon county, Mo. The petition is in the statutory form. Ouster is laid as of January 2, 1902. Defendant in his answer admits possession of part of the premises described, as follows: "Commencing 27 rods south of the northwest corner of section 29, township 30, range 6, running thence south 17 rods, thence southeast 15 rods, thence south 18 rods, thence southwest 12 rods, thence south 58 rods, thence east 88 rods, thence north 75 rods, thence west 67 rods to place of beginning," but denies possession of any other portion of the lands described in the petition and disclaims all right, title, or interest therein. Defendant for further answer to said petition says that as to the land herein described he has been in the open, notorious, and adverse possession thereof for 10 years next before the institution of this suit claiming to be the owner thereof; that plaintiff's right of recovery of such premises is barred. The reply denied the new matter pleaded in the answer and every allegation thereof. On the 18th day of September, 1903, the cause came on for hearing before the circuit court and a jury. At the close of all the evidence in the case, the court at the request of the plaintiff instructed the jury to return a verdict for the plaintiff, which was done. The defendant duly excepted at the time to the giving of said instruction. Within due time the defendant filed his motion for a new trial, assigning as a ground therefor that the court erred in sustaining the demurrer to the defendant's evidence and directing a verdict for the plaintiff, which motion the court overruled and the defendant duly saved his exceptions. The evidence on the part of the plaintiff showed a regular paper title by proper conveyances beginning with a patent from the United States government to John Smith for the land described in the petition down to the plaintiff in the case. The plaintiff's immediate title consisted of deeds from Poppleton and Stout. The deed from Poppleton to plaintiff was dated December 26, 1901, and was recorded January 3, 1902, and the deed from Stout to plaintiff was dated December 30, 1901, and was recorded January 30, 1902. Plaintiff then introduced C. C. Carlton, who testified that he was a surveyor and timber inspector of the plaintiff company and had surveyed the land described in this suit, and that the defendant had about 38 acres in the W. ½ of the N. W. ¼ in cultivation. He made this survey about the 25th of April, 1903. John Fleming testified that he was familiar with the land on which the defendant was living and that its rental value during 1902 and 1903 was from $1.50 to $2 per acre. He had known the place ever since it had been in cultivation between 15 and 20 years. On cross-examination he was asked "if the defendant had not claimed to own the land during the time he had known it?" and he answered: "He claimed to own the land in some way, but I do not know how." The defendant to sustain the issues on his part testified that there were about 50 or 60 acres of the land described in the petition inclosed; that he had lived on it since 1884; that when he first went on it, he bought the improvements from a man by the name of Pickett, who said it was vacant or government land. There was a dwelling house, stable, and 9 or 10 acres fenced at that time; that was in the fall of 1884. He testified further: "My understanding was that it was vacant land; then I wrote to the Land Office and they told me that it had been entered by a man named Smith, and during the winter of 1884, a man by the name of Cook said that he believed the land was owned by Stout and Poppleton, I wrote to Stout to know if he owned it, and he said he did, and he would take $1.25 per acre for it, if it was the kind of land I had described. I wrote him that I would give him the money if he would send me a general warranty deed, and he wrote that he would not give a better deed than he had. Since then I have been claiming by right of possession." On cross-examination he stated that he was an attorney and was admitted to the bar in 1896. "Q. You say you bought the improvements from Pickett when you went there? A. Yes, sir. Q. He told you it was government land? A. Yes, sir. Q. When was that? A. In the spring of 1884. Q. Then when was it that you wrote to Ironton? A. In the winter. Q. And found out you were mistaken about it being wild land? A. Yes, sir. Q. When was it you wrote to Stout and offered to buy the land? A. Some time in May, 1885. Q. Have you ever given this land in to the assessor? A. No, sir; I have offered to and they said they took it from the book. Q. Did you ever pay any taxes on it? A. Yes, sir; last fall. Q. Did you ever pay any before that? A. No, sir; I could not; they were already paid. Q. After you received that letter refusing to make a warranty deed, you say you claimed this land? A. Yes sir. Q. Why? A. Because I believed I had the best title. Q. Did you say you thought it was government land? A. Yes, sir. Q. Then you tried to buy it? A. Yes, sir. Q. You know Poppleton and Stout owned the land? A. Yes, sir. Q. You wanted their title? A. Yes, sir. Q. You had no other title? A. No, sir. Q. Have you bought any since? A. No, sir. Q. Did you ever examine the record to see who owned this land? A. No, sir; the record was burned up. Q. The John Smith deed was not burned up? A. No, sir; I got it from Ironton. Q. How long since the record was burned? A. I do not know. Q. Now, is it not a fact that you went out there and bought these improvements and then when you found out it was not government land you made up your mind to keep it? A. No, sir; I thought I had the best title to it. Q. Why did you think so? A. Because they would not make me a deed to it. Q. You never made an effort to get the land from anybody but Stout and Poppleton? A. Yes, sir; the government. Q. Well, did you ever get a title from anybody? A. No. sir; not by deed. Q. You went into the possession of this land before you got the letter, Exhibit A? A. Yes, sir; the fall before. Q. And that fall you cleared 20 acres? A. About that. Q. You did this before you got the letter from Stout? A. Yes, sir. Q. Is this the letter? A. Yes, sir." The letter is in the following words: "Ft. Scott, Kansas. June 4, 1883 (or 1885). Mr. C. C. Jewell— Dear Sir: In reply to yours May 24, our plats indicate we own the northwest section of 29 and 8, now have Mr. Poppleton consent to a sale at $1.25 per acre, if there is no pine timber on it, but the general warranty deed will settle...