Mulherin v. Simpson
| Citation | 28 S.W. 86,124 Mo. 610 |
| Parties | Mulherin, Appellant, v. Simpson et al |
| Decision Date | 12 November 1894 |
| Court | Missouri Supreme Court |
Appeal from Pike Circuit Court. -- Hon. E. M. Hughes, Judge.
Affirmed.
J. H Blair for appellant.
(1) A deed, even though void, may constitute color of title. Buswell on Stat. Lim. and Adverse Possession [Ed. 1889] secs. 255 and 259; Bartlett v. Kauder, 97 Mo. 356; Collins v. Rogers, 63 Mo. 515. (2) The court erred in not permitting J. E. Forgey to testify whether or not he took possession of the land under his purchase from Nere Valle. It was proper to show possession in Forgey under color of title. Possession of different holders may be united so as to make up the statutory period to acquire title by limitation. Bartlett v. Kauder, 97 Mo. 356; Cooper v. Ord, 60 Mo. 420. (3) Instruction number 1 asked by plaintiff, should have been given. The defendant Riggs having no paper title, and plaintiff having had prior possession, claiming the fee, it will prevail over Riggs' subsequent possession, or those claiming under him. Crockett v. Morrison, 11 Mo. 3; Dale v. Faivre, 43 Mo. 556; Bledsoe v. Simms, 53 Mo. 305; Davis v. Thompson, 56 Mo. 39; Cooper v. Ord, 60 Mo. 420; Martin v. Bonsack, 61 Mo. 556; Hunt v. Railroad, 75 Mo. 252. (4) Instructions numbers 2 and 3, asked by plaintiff, should have been given. R. S. 1889, sec. 6768; Harbison v. School District, 89 Mo. 184; McElhinney v. Kraus, 10 Mo.App. 218. (5) The court erred in refusing instruction number 5, asked by plaintiff. Defendants Simpson and Fulton, in their answer, claim to be in possession of the land as tenants at will of Riggs, and Riggs, in his answer, asserts that Simpson was in possession as his tenant. A tenancy at will must be created by express contract. No contract was proved or attempted to be proved. Ridgely v. Stilwell, 25 Mo. 570; Williams v. Deriar, 31 Mo. 13; Desloge v. Pearce, 38 Mo. 588, at side page 600. (6) The court erred in refusing to give instruction number 6, asked by plaintiff. Bryan v. Kenneth, 113 U.S. 179; Soulard v. United States, 4 Pet. 511; Slidell v. Grandjean, 101 U.S. 412; Doolin v. Carr, 8 S.Ct. 1228; Strother v. Lucas, 12 Pet. 410; Smith v. United States, 10 Pet. 326; Treaty ceding Louisiana to United States by France, and act of congress, May 26, 1824, pages 196 and 593, 2 White's New Collection of Land Laws [Ed. 1839]. (7) Defendant Riggs was estopped by his conduct to assert title to the land. 7 Am. and Eng. Encyclopedia of Law, p. 16; Favill v. Roberts, 3 Lans. 14; Goodman v. Winter, 64 Ala. 410; Landrum v. Union Bank, 63 Mo. 48; Collins v. Rogers, 63 Mo. 515; McNees v. Swany, 50 Mo. 388; Evans v. Snyder, 64 Mo. 516; Austin v. Loring, 63 Mo. 19.
Clark & Dempsey and Fagg & Ball for respondents.
(1) The bill of exceptions was not filed in time and ought to be disregarded. State v. Scott, 113 Mo. 559. (2) The appellant having failed to show any paper title to the land in controversy or adverse possession of it for any length of time, and respondents having shown that the respondent, Riggs, not only had a good paper title, but that all defects, if there ever were any, had been cured by the statute of limitation, it was the duty of court to instruct the jury to find for respondents. Large v. Fisher, 49 Mo. 307; Foster v. Evans, 51 Mo. 39; Marvin v. Elliott, 99 Mo. 616; Whitmore v. Crawford, 106 Mo. 435; Wilkerson v. Eilers, 114 Mo. 245; Turner v. Railroad, 112 Mo. 542; Land Co. v. Hays, 105 Mo. 143. (3) Appellant showed no right to recover, even against Simpson and Fulton. Duncan v. Able, 99 Mo. 188; Meier v. Meier, 105 Mo. 411. (4) As the United States had conveyed the land in controversy prior to the time the Chouteau grant was confirmed, the surveyor general was bound to locate said grant upon lands described in the decree. United States v. Low, 16 Pet. 162; United States v. Levy, 13 Pet. 81; United States v. Huertas, 9 Pet. 171. (5) Respondents and each of them had the right to show an outstanding title. Dunn v. Miller, 75 Mo. 260; Gurno v. Adm'rs of Janis, 6 Mo. 330; Norcum v. Doench & Ringling, 17 Mo. 98; Schultz v. Lindell, 30 Mo. 310. (6) The rule relating to prior possessions does not obtain in case where title is shown as in this case. Prior v. Scott, 87 Mo. 303; Bledsoe v. Simms, 53 Mo. 305. (7) Appellant was barred under section 6770, Statute, 1889.
This is an action of ejectment to recover a piece of land in Pike county. The piece is described in the petition: "All of the south part of the fractional west half of the northeast fractional quarter of section 11, township 52, range 1, east, that lies within the boundaries of survey number 2971, granted by the Spanish government to Auguste Chouteau, supposed to contain thirty-nine acres."
The plaintiff is Mr. William H. Mulherin.
The principal defendant is Mr. Samuel M. Riggs, who became a party, on his own motion, as the owner of the land, the other defendants, Mr. Simpson and Mrs. Fulton, disclaiming title, and asserting a right to possession as tenants of Mr. Riggs.
The petition (filed, Aug. 1, 1889) is in the ordinary statutory form. R. S. 1889, sec. 4631.
The cause was tried with the aid of a jury, and the latter returned a verdict for the defendants.
Plaintiff then appealed after the necessary steps for a review.
There were two main issues presented by the plaintiff's evidence at the trial: first, that of his right to recover on the ground of mere possession; second, his right to recover upon a possession, supported by color of title.
On both of these issues the evidence was conflicting.
It will not be necessary to the proper treatment of the points raised in the pending appeal, to set forth the testimony at large. It will be enough to indicate its general effect and purport, with reference to the rulings on which errors are assigned.
1. Plaintiff claims as purchaser of the interest or estate formerly owned by Mr. John E. Forgey, who was the principal witness for plaintiff.
So far as plaintiff's right of recovery based on mere possession is concerned, that issue was distinctly submitted to the jury, and found by the latter in favor of defendants, under instructions, some of which will be more particularly specified further on.
2. In order to show color of title, plaintiff endeavored to establish that the land in suit fell within the limits of a Spanish grant to Auguste Chouteau, since confirmed by the United States government. Chouteau's Heirs v. United States (1835), 9 Pet. 137.
Mr. Forgey's claim to the land was sought to be traced to that source of title. He attempted to prove, by his own verbal testimony, that a deed to him (Forgey) by Mr. Nere Valle (who had acquired part of the original Chouteau tract) was mutually intended to cover the land now in suit, though it did not, in fact, by its terms include it.
The court, upon objection, excluded the offer of oral evidence to that effect.
But, later in the trial, Mr. Forgey was allowed to testify that Mr. J. Gilman Chouteau (representing the same interest as Mr. Valle) had executed to Mr. Forgey a corrected deed to the land Mr. Forgey had actually acquired through Valle.
But it appears, from the terms of the corrected deed, that it conveyed the east half of the northwest quarter of section 11, etc., whereas, the land in suit is in the west half of that quarter section, as indicated by plaintiff's own petition.
Notwithstanding the ruling above mentioned, Mr. Forgey as a witness was allowed later to state, that the description in the deed of Mr. Valle was not correct, and that Mr. Chouteau's deed had corrected it. The Chouteau deed was read in evidence, during the course of the trial.
In this condition of the case we are at a loss to see what prejudice plaintiff could have sustained by the ruling, excluding the evidence of mutual mistake in the description in the Valle deed to Forgey, irrespective of any question of the abstract correctness of that ruling.
It is the duty of this court to disregard all such errors as may have had no prejudicial bearing upon the rights of the losing party on the merits of the case as developed in the trial court. R. S. 1889, secs. 2100, 2303.
3. It is contended that the circuit court erred in allowing Mr. Riggs to be made a party defendant; and in permitting the other defendants to justify under his title.
On the first phase of that contention it is sufficient to say that no exception was taken to the order, sustaining the motion of Mr. Riggs to come into the case as a defendant.
No exception to a ruling on such a motion can be interposed for the first time in the supreme court. It must be seasonably made in the trial court, otherwise it can not be reviewed on appeal. R. S. 1889, sec. 2302.
On the other branch of this assignment of error, the defendants, Mr. Simpson and Mrs. Fulton, were originally defendants, charged with being in possession, adverse to plaintiff's rights. They disclaimed ownership by their answer; and alleged that they held as tenants at will of Mr. Riggs. The answer of the latter recognized that tenancy.
In that state of the record, a right to possession of the land in Mr. Riggs, based on his record title, would protect all holding under him, as his codefendants claimed to do.
The plaintiff in ejectment must recover, if at all, on the strength of his own title, or right to possession.
Mr. Riggs claimed title, through mesne conveyances under a patent from the United States government to Thomas Boxley in 1829. His chain of conveyances was complete; and unless he had lost his rights by the adverse occupancy of others, he plainly was entitled to possession, upon his paper title (which the court rightly interpreted and...
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