Nelson v. Brodhack

• Citation: 44 Mo. 596
• Parties: THOMAS S. NELSON, Appellant, v. JOHN BRODHACK, Respondent.
• Decision Date: 31 October 1869
• Court: United States State Supreme Court of Missouri

44 Mo. 596

THOMAS S. NELSON, Appellant,

v.JOHN BRODHACK, Respondent.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Hospes, for appellant.

I. The plea of the statute of limitations is a plea in confession and avoidance. (1 Chit. 556; Steph. on Pl. 138, 139, 198, 200; Bauer v. Wagner, 39 Mo. 385.)

II. The deed from the sheriff to Nelson contains a definite and certain description of the property conveyed. (Noonan v. Lee, 2 Black, 499; Vance v. Fore, 24 Cal. 435; Seaward v. Malotte, 15 Cal. 304; 32 Barb. 374; Carson v. Ray, 7 Jones' Law, 609; Peck v. Mallams, 6 Seld. 509; Stanley v. Green, 12 Cal. 148.)

Clover & Reber, for respondent.

I. The sheriff's deed, under which plaintiff claims, is void for uncertainty. (Clemens v. Rannells, 34 Mo. 579.)

II. The opinion of witnesses as to the proper location of a grant or conveyance is inadmissible. (Blumenthal v. Roll, 24 Mo. 113; Schultz v. Lindell, 30 Mo. 310, 312, 321.)

III. It is not competent to remove a patent ambiguity by the testimony of witnesses. (2 Starkie, 546.)

IV. The plea of the statute of limitations is not inconsistent with a denial of the plaintiff's title, and therefore the pleas may well stand together. (Bauer v. Wagner, 39 Mo. 385; Voorhies' Code, 8th ed., 297.)

V. It is not necessary, in ejectment, to plead the statute of limitations (Adams on Ejectment, 270, 302); and defendant in ejectment might give in evidence a deed by the plaintiff for the locus in quo, without pleading it. (Biddle v. Mellon, 13 Mo. 341; Blair v. Smith, 16 Mo. 273; 3 Washb. on Real Property, 113.)BLISS, Judge, delivered the opinion of the court.

This was an action of ejectment for two parcels of land in the Durand tract, in the city of St. Louis. The plaintiff, under the pleadings, was required to prove title; and, failing to do so, judgment was given for defendant. The issues were made by a denial of the plaintiff's allegations and upon a plea purporting to be a plea of the statute of limitations; and the defendant claims that the last plea was a confession of the plaintiff's original right--was inconsistent with the denials, and relieved the plaintiff from the necessity of proving title. The objection raises the question whether an answer setting up new matter, by way of defense, is so far a confession of the cause of action as, under our statute, to be inconsistent with its denial. The logic of the old special pleas in bar admitted the material allegations of the plaintiff, but pleaded actio non, quia the new matter. In a technical sense, they were inconsistent with the denial; and, to obviate it, the more recent forms in Chitty threw in an “if,” etc., but they were never held to be so inconsistent as not to be pleadable together, unless there was an absolute incompatibility of facts. If we were to limit our statutory allowance of consistent defense by the strict logic of the old special pleas in bar, all special defenses would be cut off when the cause of action was denied; for such special defenses are technically supposed to confess and avoid, although, in fact, they may not confess at all. Such an interpretation of the statute should not be adopted if there is any other that will give a party his clear right to several defenses.

A special defense is not necessarily inconsistent with a denial. For instance, suppose A sues B upon a promissory note; B denies its execution, in the nature of a special non est factum, under the old system, and afterwards alleges payment or release. He does not thereby deny the existence of the paper; and an averment of payment, or any other matter of discharge, is not necessarily inconsistent in fact with original non-liability, for men sometimes adjust demands for which they are not liable. If, notwithstanding, the demand is put in suit, it would be unjust to deprive a defendant of every lawful defense. Some interpretation, then, of the term “consistent defenses” should be adopted, if possible, that shall be consistent with the statute and secure the rights of full defense. That right will be secured if the consistency required be one of fact merely, and if two or more defenses are held to be inconsistent only when the proof of one necessarily disproves the other. Two statements are not inconsistent if both may be true. Thus, if one has paid or performed a forged or unauthorized or altered promissory note or covenant, he may deny, not the existence of the paper, but that it was his promise or deed, and also aver its payment or satisfaction. But, under our system, the facts should be so set out that both defenses may be true. So, in slander, for charging one with being a thief, the defendant may deny the words and add the actio non because the plaintiff stole a horse. Proving the larceny does not prove the speaking the words. The logic of the justification under the old system might be held to admit the act justified, yet there is no inconsistency in the facts alleged. Other illustrations might be given, but none would be more pertinent than the case at bar.

The plaintiff states that at a certain time he was the owner of, and lawfully entitled to, the possession of certain land, and that defendant unlawfully held it from him. Defendant denies both propositions, and afterward says “that he and those under whom he claims have had and held open, notorious, and continuous and exclusive possession of the premises sued for ten years prior to the commencement of this suit, adverse to all other persons, and to the plaintiff, and that such possession bars the plaintiff.” This answer differs from the usual form of pleading the statute, and, if it pleads it at all, is clearly argumentative. But, supposing it had been never so formal, would there have been any inconsistency in fact between that allegation and an express denial of title? As we shall presently see, the plea was wholly unnecessary; but whether necessary or not, it admitted nothing, but only gave a reason, as it were, for the denial of title.

But in ejectment the plea of the statute of limitations is not required in order to entitle the defendant to its benefits. The plaintiff alleges that he is the owner, and is lawfully entitled to the possession, and that defendant unlawfully holds it from him. These are affirmative facts which, if denied, he must prove. He must show such title in himself as should give him possession. If the defendant is the lawful owner, the plaintiff fails and fails upon the issue he tenders. It is not necessary for the defendant to set up, by way of answer, title in himself or any one else; it s involved in his denial of the plaintiff's right. But if the defendant wishes to avail himself of any facts that do not amount to such denial, as, for instance, that the plaintiff's remedy is suspended by adverse possession of defendant, if such distinction can be made, he must plead it. The necessity, then, of pleading the statute of limitations depends upon its effect, whether it merely suspends the remedy or vests in the defendant the absolute title to the property. If the latter, there is no more necessity of pleading it than though he held the plaintiff's title.

The effect of the statute in this regard is no longer open to question. Says Washburne (on Real Property, vol. 3, side p. 501): “In summing up the effect of an adverse possession continued for such a length of time as to operate as a statute bar to the claims of others to establish a title to lands, the language of the court in School Districts, etc., against Benson, 31 Me. 384, may be adopted. A legal title is equally valid when once acquired whether it be by disseizin or by deed; it vests the fee simple, although the modes of proof, when adduced to establish it, may differ.” “An open, notorious, and adverse possession for twenty years would operate to convey a complete title as much as any written conveyance. * * The operation of the statute takes away the title of the real owner and transfers it * * to the adverse occupant.”

The Supreme Court of Pennsylvania, in Moore v. Luce, 29 Penn. St. 262, says: “The statute of limitations gives a perfect title. It is a mistake to suppose that the person barred loses nothing but his remedy.” The court speaks to the same effect, but more emphatically, in Schell v. W. V. R.R. Co., 35 Penn. St. 191. The same doctrine is held in Grant v. Fowler, 39 N. H. 101. The following is the syllabus in Hughes v. Graves, 39 Verm. 259: “The party who acquires a title to land under the statute...