Pease v. Lawson

• Decision Date: 31 October 1862
• Citation: 33 Mo. 35
• Parties: CLAUDIUS A. PEASE, Respondent, v. OLIVER LAWSON et al., Appellants.
• Court: Missouri Supreme Court

33 Mo. 35

CLAUDIUS A. PEASE, Respondent,

v.OLIVER LAWSON et al., Appellants.

Supreme Court of Missouri.

October Term, 1862.

Appeal from Iron Circuit Court.

This was an action of ejectment. Upon the trial, the plaintiff gave in evidence--

1. A patent to Andrew Jamison for the north-west quarter of south-east quarter of section 32, township 34, range 4 east, containing forty acres, dated March 15, 1837.

2. Plaintiff read a deed from J. H. Relfe and wife and Andrew Jamison to John L. Van Doren, dated August 13, 1836.

3. Copy of deed from J. L. Van Doren to Luther Halsey, dated May 20, 1837.

4. The plaintiff then offered to read, as an acknowledged deed, a power of attorney from Luther Halsey to John M. Eager, dated September 24, 1855. Defendants objected, and it appeared, on inspection, that there was no scrawl by way of seal made with pen or pencil, but there was a small round piece of paper, cut in scallops on the edges, attached to the end of the grantor's name, the usual place of a seal with a wafer, but no impression made thereon. The proof on the deed was the proof of Claudius A. Pease, the present plaintiff, taken September 25, 1855. The defendants objected that the paper was not a sealed instrument, and that Claudius A. Pease was not a competent witness to prove the deed; but the court overruled the objection and permitted the paper to be read, and defendants excepted.

5. Plaintiff then offered a deed from Luther Halsey, by John M. Eager, attorney in fact, to Claudius A. Pease, dated November 27, 1855, which was precisely the same as the power of attorney to Eager in regard to the seal. The defendants objected.

6. Plaintiff then read a deed from Luther Halsey to John M. Eager, dated September 24, 1855, for one undivided half of the two tracts of land mentioned in the power of attorney. Defendants objected.

7. A deed from John M. Eager to plaintiff, Claudius A. Pease, dated September 24, 1855.

8. Plaintiff then offered to read a power of substitution from John M. Eager to Claudius A. Pease, dated March 24, 1856. Defendants' objection overruled and excepted to. Also, a power of attorney from said Eager to Pease, dated March 24, 1856. Same objections and exceptions taken.

This was all the evidence on the part of the plaintiff.

The defendants gave in evidence a deed from John Polk and wife, dated November 12, 1847; and proved a continuous possession under that deed up to the date of trial, being more than ten years next preceding the commencement of the suit.

After defendants closed their evidence, the plaintiff offered to read, and did read, against the objections of defendants, a tax deed from the State to John Polk, dated March 7, 1849, purporting to be based on a sale for taxes made in 1846, for the purpose of showing that at the time Polk sold to the Madison Iron Company his title had not been complete.

This was all the evidence.

The defendants asked six instructions, all of which were refused, but the court gave, of its own motion, the following instructions:

“If the jury find that the defendants, the Pilot Knob Company, by their tenants and employees, have held possession of the land in controversy continuously for the term of ten years next before the 20th October, 1858, the date of the commencement of this suit, under an exclusive claim of right to the property, then the plaintiff is barred of his recovery by the statute of limitations, and the jury will render their verdict for defendant.

But if they find that the defendants, the Pilot Knob Company, entered into possession under the tax title conveyed to them by Polk, well knowing that no title could arise from such sale before the period of two years, the time allowed for redemption had expired, then such deed from Polk is no sufficient color of title to entitle the defendants to possession beyond the particular spots actually occupied and enclosed by them. And even in this case the jury must find that each particular spot had been held continuously for the space of ten years before the institution of this suit, as above, before the defendants will be entitled to their verdict as to the parts thus enclosed and occupied.

But if the jury find that more than ten years have elapsed after the taking possession by the defendants, and after the period of redemption had expired, before the institution of this suit, and that during the whole of this time the defendants have occupied parts of the land, exercising ownership and control over the whole, and that such possession had been continuous to the time of the commencement of this suit, then they will find a verdict for defendant. The plaintiff having deduced a title from the Government by a regular chain of title deeds, is entitled to recover unless he is barred by the statute of limitations, as above.

If the jury find that the plaintiff commenced an action for the recovery of the land in controversy against the tenants of the defendants on the 14th day of December, 1857, and that after said suit was dismissed and within one year from the date of such dismissal the plaintiff commenced this suit, then the jury must find that the ten years of the statute of limitations had elapsed before the said 14th December, 1857, before they can find for the defendants.”

Verdict for plaintiff. Motion for new trial was overruled, exceptions duly taken, and defendant appealed.

J. W. Noell, for appellant.

I. The several deeds objected to as not being sealed should have been excluded, and Claudius A. Pease not being a competent witness on the trial, could not prove up the deeds out of court and read them in his own case in court.

II. That defendants made out a clear case under the statute to quiet vexatious litigation of 1847, and the instructions asked by defendants, in regard to limitations, should have been given.

III. The court should not have permitted the tax deed to Polk to be read for the purpose of shortening defendants' possession. Defendants went in under Polk's deed, and it made no difference about the character or quality of Polk's title. His deed describes the land, and gives quality to defendants' possession without any reference to what may have been behind his claim.

IV. The plaintiff reads the tax deed himself. Is he not estopped from denying the title under that deed? If defendants had read the deed, plaintiff might have required defendants to show that the requirements of law had been complied with so as to authorize the deed. But when plaintiff offers to read, and does read the deed, he must admit its validity as a deed.

M. Frissell, for respondent.DRYDEN, Judge, delivered the opinion of the court.

The counsel for the appellants presents four grounds of error for the reversal of the judgment of the Circuit Court in this case:

First--That certain documents, purporting to be deeds for the conveyance of the land in controversy, under which the plaintiff claimed, were not sealed instruments, and, therefore, inoperative to pass the title, and should have been rejected.

Second--That...