Mylar v. Hughes

• Decision Date: 31 May 1875
• Citation: 60 Mo. 105
• Parties: JOSEPH MYLAR, Appellant, v. JOHN HUGHES, Respondent.
• Court: Missouri Supreme Court

60 Mo. 105

JOSEPH MYLAR, Appellant,

v.JOHN HUGHES, Respondent.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Caldwell Circuit Court.

Crosby Johnson, for Appellant.

I. The court erred in admitting the declarations of David Hughes when he claimed title to the land in dispute. Defendant and his ancestor never had actual possession of this land. Their possession, if any they had, was constructive. To constitute constructive possession, the claim must be under color of title. (DeGraw vs. Taylor, 37 Mo., 310; St. Louis vs. Gorman, 29 Mo., 593.) To constitute color of title there must be an instrument, having a grantor and grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance. (3 Washb. Real Pr., 138, § 36 a.) No mere words of claim will supply the place of color of title.

“Constructive title is never based upon a claim merely. There must be a deed purporting to convey the whole, or some proceeding or instrument, giving color and defining boundaries, as well as actual possession of a part.” (Long vs. Higginbotham, 56 Mo., 245; Fugate vs. Pierce, 49 Mo., 441, 447-8.) In a suit for the title to land, the declarations made by a party in possession, asserting his title, are not competent testimony. (Morey vs. Staley, 54 Mo., 419; McLean vs. Rutherford, 8 Mo., 109; Criddle vs. Criddle, 21 Mo., 522; Turner vs. Belden, 9 Mo., 797.)

II. Even if David Hughes gave a deed of trust to Grubb, DId did not and could not hold or claim under that deed. It would be no color of title for him. Nor could his possession enure to James M. Hughes.

III. Defendant, being a stranger, cannot assail the decree, either directly or collaterally for irregularities, or for anything which did not go to show want of jurisdiction on the part of the court. That final judgment was rendered at the return term, is an irregularity for which the case on error or appeal might have been reversed, but cannot be attacked collaterally. (Brackett vs. Brackett, 53 Mo., 265; Carsin vs. Sheldon, 51 Mo., 436.)

J. M. Hoskinson, with Franklin Porter, for Respondent.

I. A written conveyance is not necessary to give color of title. “Whatever title would authorize a party in possession of a part of a tract to maintain an action against a wrongdoer, for a trespass on the remainder of the land, would be a sufficient color of title under the statute of limitations as against the real owner. It is not necessary that this color of title should be created by deed or other instrument of writing. It may be created by an act in pais without writing,”per Adams, J., in Rannels vs. Rannels (52 Mo., 112--disapproving and overruling City of St. Louis vs. Gorman, 29 Mo., 592, Fugate vs. Pierce, 49 Mo., 441 and Crispin vs. Hannavan, 50 Mo., 536, so far as they enunciated a contrary doctrine; see, also, McCall vs. Neely, 3 Watts, 72; Bell vs. Longworth, 6 Ind., 277.)

II. But either the deed from Grubb to J. M. Hughes, made in 1856, or that from J. M. Hughes to David Hughes, made soon after, and burned in April, 1864, both conveying all of the north half of section 15, gave ample color of title to all of said half section including the land in suit to respondent's grantors, more than ten years before this action was brought. Any instrument having a grantor and a grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance, gives color of title to the lands described. (3 Wash. Real Pr., 137; Brooks vs. Brayn, 35 Ill., 394.)

III. Plaintiff failed to show that he ever had title to the land in suit. The transcript wholly fails to show that the land in controversy was ever patented to Squire Bozarth.

NAPTON, Judge, delivered the opinion of the court.

This was an action of ejectment to recover the west half of the north-west quarter of section 15, township 56, range 29.

The plaintiff produced in evidence a patent from the United States for the land in controversy, to one Squire Bozarth, the date of which is not stated, and a proceeding in equity in 1870, to divest the title from Squire Bozarth to his brother, John Bozarth; and then produced a deed from John Bozarth to himself.

The patent is not copied in the record by agreement of counsel, but from subsequent testimony we may infer that it was dated as far back as 1838 or 1839, and perhaps earlier.

The only defense relied on was the statute of limitations, and the testimony on this point is exceedingly vague and confused; and it is difficult to state the precise state of facts on which the instructions and subsequent verdict and judgment of the court were based.

The main facts, however, which may be assumed as uncontradicted and beyond dispute, seem to be about as follows:

David Hughes, the father of the defendant, was in possession of a farm, lying partly in the north half of section fifteen, in 1839 or 1840. His house, which some of the witnesses call the “old Jo. Smith house,” was in or near the town of Far-West, and his farm, actually enclosed and cultivated, contained about 100 acres of land, lying mostly in the northeast quarter of section 15, and partly in a section north of 15. The origin of the claim or title to this farm nowhere appears in any portion of the evidence given at the trial on either side.

It does appear, however, beyond dispute, that in 1855, David Hughes conveyed the north half of section 15 (which embraces the land in controversy) together with some 60 acres in section 10, to John P. Grubb, of St. Joseph, to secure a loan of about $1,300 made by one Roberts of the same city.

There having been a failure of payment on the part of Hughes, Grubb, the trustee, sold the land under the deed, on the 28th June, 1856; and James M. Hughes, of St. Louis, became the purchaser, through an agent of his, sent to Kingston for the purpose. The sum bid was about $1,500. After this J. M. Hughes made a deed for this same land to David Hughes, said Hughes agreeing to give his note or notes for the amount of the purchase, with interest, and to secure the same by a deed of trust.

The witness who testifies to these facts then proceeds: “said deed of trust and notes were sent to me with the deed to David Hughes by James M. Hughes. The deed of trust and note or notes above referred to were burned at the time of the burning of the court house in Kingston, in April, 1860. They were in my possession when burned. After this, and after the death of David Hughes and James M. Hughes, the land was sold under a deed of trust, executed and made by said David Hughes at Kingston, and bought in, as I now remember, by Calvin F. Burns, &c.” This is all the testimony in reference to the deed of J. M. Hughes to David Hughes.

The history of the subsequent deed is clear enough. On the 19th of July, 1866, David Hughes conveyed to Hardwick, as trustee, to secure a note for $1,800, given to C. F. Burns, dated in 1860, and payable nine years after date. The half section conveyed in this deed, which includes the land in controversy was subsequently conveyed by Hardwick, in 1869, to Calvin F. Burns; and on the 22nd of December, 1870, Calvin F. Burns conveyed this same land to John Hughes, the defendant, a son of David Hughes.

In regard to acts of ownership or verbal declarations of ownership of the land in controversy, the testimony of Th. C. Hughes, a son of David Hughes, was, that his father moved to the county in 1839; that he cultivated a field of 100 acres in the north half of section 15, but not including the 80 acres now in dispute, nor any part of it; that he claimed the north half of the section by a deed from J. M. Hughes; that from 1841 to 1844, he had a race track on the north-west quarter, which passed over an acre or two of the 80 acre tract sued for; and upon one occasion he authorized a neighbor to cut firewood on this western 80, of the north half of the section.

It was proved that David Hughes never gave in this land to the assessor, and that it was taxed as belonging to one Sam. Stewart. It also appeared that Bozarth had paid the taxes on the 80 acre tract in question, in 1844 and 1845, but neglected to pay any thereafter, thinking it had been sold for non-payment of taxes.

Omitting for the present any notice of the minor questions presented by various exceptions taken at the trial, it is obvious that the merits of this case depend upon the construction which is to be given to the phrase “color of title,” so frequently found in adjudications and text books, in connexion with the facts in evidence.

That the original entry of Hughes was without color of title, we are left to presume, as none was shown; that an entry upon 80 acres of land and an actual possession of the same will not give “color of title” to 160 acres, without some paper conveyance to the disseizor, or some claim based on the peculiar facts of the case, is manifest, and it is equally plain that the disseizor cannot make his title any better by giving a deed to some third person and taking back a conveyance to himself.

C. J. Gibson, in McCall vs. Neely (3 Watts, 72), discusses this subject carefully, and his conclusion is expressed thus: “To give color of title, would seem not to require the aid of a written conveyance, or a recovery by process and judgment, for the latter would require it to be the better title. I would say that an entry is by color of title when it is made under a bona fide and not pretended claim to a title, existing in another. It is impossible, therefore, to say that a disseizor, claiming to be the true owner of a survey, as he may in fact be, without being named in the warrant, does not enter by color of title.”

These observations of this eminent judge are plain enough to convey his meaning, as applied to the system of land surveys and warrants in Pennsylvania; but under the system of surveys adopted by the federal government for the sale of their land in the Missouri Valley Territory and Louisiana, some modification of the principle, or of its...