Missouri Lumber & Mining Co. v. Hassell
| Decision Date | 30 July 1927 |
| Docket Number | 25580 |
| Citation | 298 S.W. 47 |
| Parties | MISSOURI LUMBER & MINING CO. v. HASSELL |
| Court | Missouri Supreme Court |
Motion for Rehearing Denied September 16, 1927.
J. W Chilton, of Springfield, and S. A. Cunningham, of Eminence for appellant.
Henson & Woody, of Poplar Bluff, for respondent.
The plaintiff sued in ejectment by petition, in the usual form claiming certain land in Butler county, described as the southwest quarter of the northeast quarter and northwest quarter of the southeast quarter of section 36, township 25, range 4. The record shows that some months after the suit was brought plaintiff had leave to amend its petition by striking therefrom the said southwest quarter of the northeast quarter. The ouster was laid as of January 2, 1921. The amended answer of defendant admitted possession of a part of the land described in the petition, denied every other allegation therein, and asked for judgment. Further answering, and as an affirmative defense, defendant alleged that she was the owner of a part of the northwest quarter of the southeast quarter, and part of the southwest quarter of the southeast quarter of said township and range, more particularly described as follows:
'Beginning at the center of the southeast quarter of said section, running thence north 7 chains and 8 links, thence in a westerly direction along and with the fence about 10 chains, thence southerly with said fence about 4 chains, thence in a southeasterly direction with said fence about 12 chains to a point about 2 chains south of the center of said southeast quarter of said section, thence north to the place of beginning; also beginning at a point about 20 rods south of the center of said section 36, thence in a northeasterly direction along and with the fence about 2.5 chains, thence southeasterly with the fence 1.53 chains, thence northeasterly with the fence 3.24 chains, thence southeasterly with the fence about 3.5 chains, thence southwesterly, along the fence, about 7.5 chains (thence northwesterly along the fence, about 5 chains) thence northeasterly along the fence about 1.5 to point of beginning.'
Defendant then set up title to the land described by metes and bounds, under the 10 year statute of limitations (Rev. St. 1919, § 1316), and adverse possession, and disclaimed any right to the remainder of the land described in the petition, and again prayed judgment. No reply was filed, but the cause proceeded to trial without objection. The cause was submitted to the court without a jury. No declarations of law were asked or given, and the court found for defendant as to the land described in her answer, and that plaintiff had no interest in that land, and entered a decree vesting and quieting title in defendant to that land.
Upon the trial, it was admitted that the record title to the land in controversy, beginning with a patent issued by the United States government, in the year 1859, was vested in the plaintiff by mesne conveyances from the patentee of said land. Plaintiff then showed payment of all county and state taxes on the land in controversy from the year 1898 to 1922, inclusive, and rested. The plaintiff owned large tracts of land in the vicinity of the land sued for. It was timber land from which ties were cut.
Defendant's evidence showed that early in the year 1901 Miles Hassell, husband of defendant, took possession of the land included in the two tracts described by metes and bounds; that he built a cabin thereon, or, as some of the testimony tended to show, repaired and recovered an existing cabin, which had fallen into a dilapidated condition; that he erected a fence inclosing the irregularly shaped body of land, composed of the two contiguous tracts described in defendant's answer; that he cleared the land, or the most of it, and it was put under some sort of cultivation and so remained.
Miles Hassell's family then consisted of defendant, his wife, and several children. They occupied the land until some time in the year 1905, when he, with his family, went to Joplin to work in the mines. At the time he left the premises, he rented the land to one Ardel Cash, and at that time also he engaged a neighbor, one Harve Edwards, to care for and take charge of the premises for him. Edwards testified that he collected the rent from Cash for that year, and sent it to Miles Hassell at Joplin. It appears that Cash did not occupy the house, but cultivated the land.
In the spring of 1906, one Aaron Freeman moved into the house, and he occupied it for about two years, leaving it under the circumstances hereinafter mentioned. Edwards testified that Freeman had no authority from him to occupy the house, and he knew of no authority to Freeman from any one, that he said nothing to Freeman about it, but that Miles Hassell sent to him a notice to be given to Freeman, and that he did give the notice to Freeman. The terms of the notice are not stated.
Miles Hassell died at Joplin about 1907. In the spring of 1908, the defendant with her children returned to the property. It appears from the testimony that Freeman in the meantime had made some slight improvement, had added another room to the cabin, and he refused to give possession to defendant unless she would pay him for the improvement he had made. She paid him $ 10. He left the place, and defendant and her children entered into possession, and so remained, and were in possession at the time the suit was brought. The defendant's evidence was to the effect that from the time she so took possession the land was cultivated, not by her sons, however, but by persons in the neighborhood, who paid rent to her, and that she and her children lived upon the premises continuously from and after her entry in 1908.
There is no serious dispute as to the fact that the defendant was in the actual possession of the premises described, bounded by the fences erected by Miles Hassell, or that Miles Hassell was in the actual possession from 1901 until he went to Joplin, and thereafter by his tenant Ardel Cash. The essential claim of plaintiff is that the possession of defendant and of her husband was not adverse; that the possession was not under a claim of right or ownership, and therefore did not set the statute into operation. Counsel contends that possession of land taken with recognition and acknowledgment of the true owner's title is not adverse to the true owner, and will not ripen into title by any flux of time, and cites cases in support of the rule that a possession in accord with or in subservience to the true title is not adverse thereto. Stevenson v. Black, 168 Mo. 549, 68 S.W. 909; Missouri Lumber & Mining Co. v. Jewell, 200 Mo. 707, 98 S.W. 578; Hunnewell v. Adams, 153 Mo. 440, 55 S.W. 95; Hunnewell v. Burchett, 152 Mo. 614, 54 S.W. 487; Missouri Lumber & Mining Co. v. Chronister (Mo. Sup.) 259 S.W. 1042; Baker v. Thompson, 214 Mo. 500, 114 S.W. 497; Feller v. Lee, 225 Mo. 319, 124 S.W. 1129. These and other cases are cited in support of the contention that actual possession of land for any length of time whatever is not of itself sufficient to divest the true owner of his title, but there must be in addition a claim of right to the land, and that proof of such claim is as mach a part of the case under the ten-year statute of limitations as proof of actual possession. A statement of the rules severally stated by counsel for plaintiff, embodying all that is said in the cases cited by counsel and applicable to this case, may be found in the opinion in Himmelberger-Harrison Lumber Co. v. Craig, 248 Mo. 330, 154 S.W. 73, as follows:
In its application to this case under the foregoing rule, some further statement of testimony should be given.
Harve Edwards, defendant's witness, testified that Miles Hassell claimed the premises as his. He was asked on cross-examination whether Miles Hassell told him how the property came to be his. The witness said that Hassell told him some fellow bought it for him from the plaintiff company; that the man who bought it for him worked for plaintiff, and got it cheaper than he could, and that he got it for $ 20. The witness testified that Hassell did not say he had actually paid the money, nor say that he had not paid it.
Another witness for defendant testified that Hassell claimed the land while he lived upon it, that he claimed he bought it and went to work improving it, but that the witness did not know how he got hold of it. This witness also, on his cross-examination by counsel for plaintiff, said Miles Hassell or some one told him that Hassel had bought the land from the plaintiff company. He thought it was Hassell himself who told him this.
George Hindricks, who lived near the land in 1901, and afterward testified that Hassell claimed the place while he...
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