Norfleet v. Hutchins

• Decision Date: 31 October 1878
• Citation: 68 Mo. 597
• Parties: NORFLEET v. HUTCHINS, Appellant.
• Court: Missouri Supreme Court

68 Mo. 597

NORFLEET

v.HUTCHINS, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

F. S. Heffernan for appellant.

E. Y. Mitchell for respondent.

SHERWOOD, C. J.

Plaintiffs brought ejectment for a certain tract of land, claiming under one Jacob Shultz. Defendant Hutchins claims under Rountree, who claimed to have purchased the interest of Shultz at execution sale August 22nd, 1863. This suit was brought February 25th, 1875. The deed from Rountree to defendant bears date April 13th, 1865. It was shown on the trial that the deed which Rountree obtained at the sheriff's sale, conveyed no title, so that the only question is, whether defendant and his grantor, Rountree, have had such a possession of the tract in controversy for such a period as will enable defendant to successfully invoke in his defense to this action the statutory bar. As to Rountree, he never had actual possession of any portion of the tract, nor did he exercise any of the usual acts of ownership, save those of paying taxes, and on one occasion driving away from the land a trespasser. And, as to defendant, though he says he took possession immediately upon purchasing, it is evident from his subsequent statements that he never really took possession of any portion of the tract, nor exercised acts of ownership over it, aside from paying taxes, until 1866 or 1867, when he had a house built and a “truck patch” of about half an acre fenced on the land. But even granting that he took actual possession of the land on the date of his purchase, and continuously maintained it thereafter until suit brought, this would not avail him, unless his grantor, Rountree, had previously had such possession of the premises, as would, together with his own possession, answer the requirements of the statute of limitations.

The 5th section of that statute (2 Wag. Stat., p. 917) provides that: “The possession, under color of title, of a part of a tract or lot of land in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract so claimed, shall be deemed a possession of the whole of such tract.” The above section has not, that I am aware of, ever been before adverted to but on one occasion, Bradley v. West, 60 Mo. 33. In that case it was said, after quoting the section in question. “This section only applies where * * the person having the color of title is in possession of a portion of the premises.” This we regard as the obviously correct construction of the section quoted. Nor do we think it can be doubted that the possession there referred to of a part of the tract can mean any thing less than actual possession of such portion; because, otherwise, the words in reference to possession of a part of a tract in the name of the whole, would be without meaning. In other words, if the exercise of the usual acts of ownership over the whole tract claimed would be sufficient, it would be but an idle ceremony to take possession of a portion of the tract. But if we take, as we must, the statute for our guide, before the...