Pharis v. Jones

• Decision Date: 24 May 1894
• Parties: Pharis v. Jones, Appellant
• Court: Missouri Supreme Court

26 S.W. 1032

122 Mo. 125

Pharis v. Jones, Appellant

Supreme Court of Missouri, Second Division

May 24, 1894

Appeal from Barry Circuit Court. -- Hon. Joseph Cravens, Judge.

Reversed and remanded.

Norman Gibbs and Thomas M. Allen for appellant.

(1) Where one occupies land up to a certain line, under a mistaken belief that it is the true line, but with no intention to claim beyond the actual line or legal boundary "such a possession will not be deemed so adverse as to start the statute of limitations to run against the rightful owner. Tiedeman on Real Property [1 Ed.], sec. 699; University v. McCune, 28 Mo. 481; Schad v Sharp, 95 Mo. 573; Jacobs v. Mosely, 91 Mo 457. (2) The deed under which Pharis now claims, was void on its face and could not give color of title. The law presumes that Pharis knew it was void. (3) Possession, to be adverse, must be actual or constructive, visible or notorious, distinct and exclusive, hostile and adverse. Tiedeman on Real Property [1 Ed.], sec. 694; Musick v. Barney, 49 Mo. 458; Swayze v. Bride, 34 Mo.App. 414; Pike v. Robertson, 79 Mo. 615. (4) The party setting up adverse possession must prove it to the satisfaction of the court. Bradley v. West, 60 Mo. 33. (5) In this case declaration number 4 given for plaintiff by court below was approved as given.

T. D. Steele and W. Cloud for respondent.

The evidence shows that in 1863 Boon took a deed to the land and placed it on record and exercised the customary acts of ownership over it. The trial court found that plaintiff had been in possession for more than ten years at the commencement of this suit under color of title and that such possession was open, adverse and hostile and the judgment should be affirmed.

OPINION

Burgess, J.

Ejectment for the southwest quarter of the southwest quarter of section 29, township 23, range 27. The petition is in the usual form, and the answer a general denial. The land is timbered. At the time plaintiff obtained a quitclaim deed for it from Boon, August 3, 1867, it was unfenced, except about two acres on one corner which ran down into the inclosure of what is known as the Mason farm. Littleberry Mason, who originally owned the farm, died in 1853, leaving a widow and eight children. His widow occupied by herself and tenant a part of the farm of which her husband died seized, which included, within the part inclosed by a fence, the two or three acres of the forty acre tract in controversy, as above stated.

Plaintiff occupied a part of the Mason farm including said two or three acres as Mrs. Mason's tenant until she died, which was about six years before the trial. At the time of her death he owned six of the eight shares in the farm and before the trial he became the owner by purchase of the other two shares. After August 3, 1867, plaintiff continued from time to time to extend the fence around the Mason farm outward on the land in controversy until he had some twenty acres inclosed before the commencement of this suit. All this time he claims to have been claiming and holding the land as his own and at no time as the tenant of Mrs. Mason.

Plaintiff to maintain the issue on his part, offered in evidence the abstract of entries for Barry county, of United States land office at Springfield, Missouri, showing this land was located by Chas. Ingles, August 28, 1857. He next read in evidence, over the objection of defendant, the following deeds: A deed from Sample Orr, register of lands, dated February 20, 1863, to J. W. Boon, for the southwest quarter of southwest quarter of section 29, township 23, range 27, and other lands. A quitclaim deed from J. W. Boon to D. P. Pharis, dated August 3, 1867, for the southwest quarter of southwest quarter of section 29, township 23, range 27, and other lands; consideration, $ 75.

Plaintiff next introduced evidence tending to show actual possession of the two or three acres in the Mason farm by himself and those under whom he claimed title; acts of ownership in cutting timber; keeping off trespassers; the payment of taxes for the years 1872 and up to 1884, inclusive; the extension of the inclosure for the last twenty years, until at the time of the trial it amounted to about twenty acres of the tract sued for.

Defendant claims title under a quitclaim deed from the patentee, Chas. Ingles, and wife, dated May 18, 1891.

The trial resulted in a judgment for plaintiff for possession of the forty acre tract sued for, from which defendant, after an unsuccessful motion for a new trial, and in arrest of judgment, appealed to this court.

The defendant asked the court to declare the law to be as follows:

"4. That the possession and occupation of the small portion of the land in controversy by D. P. Pharis against the real owner of said pieces, did not start the statute of limitations to running against the real owner and in favor of said Pharis.

"5. That the possession and occupation of the two small pieces of the southwest quarter of the southwest quarter and the northeast quarter of the southwest quarter of section 29 township 23, range 27, that extended into Littleberry Mason's field, was not an adverse holding by D. P. Pharis against the real owner of said pieces, and did not start the statute of limitations to running against the real owner and in favor of said Pharis, till after the death of the widow of Littleberry Mason, in the year 1883.

"6. That the possession and occupation of the two small pieces of the southwest quarter of the southwest quarter and the...