Plaster v. Grabeel

• Citation: 61 S.W. 589,160 Mo. 669
• Parties: PLASTER v. GRABEEL et al.
• Decision Date: 12 March 1901
• Court: Missouri Supreme Court

61 S.W. 589

160 Mo. 669

PLASTER v. GRABEEL et al.

Supreme Court of Missouri, Division No. 1.

March 12, 1901.

ADVERSE POSSESSION — COLOR OF TITLE.

1. A deed to M. need not be recorded, to be color of title, where the land is openly known as M.'s land, and the true owner lives in the neighborhood, and sees and knows of the condition of affairs.

2. One who goes into possession of land under a recorded deed giving him color of title, and cultivates part of it for 10 years, — his possession being uninterrupted, — acquires title by adverse possession, though he lives on adjoining property.

Appeal from circuit court, Ozark county; W. N. Evans, Judge.

Action by Thomas E. Plaster against Isaac Grabeel and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Ejectment for 40 acres in Ozark county. Answer, general denial, and statutes of limitation of 10 years and 30 years. Trial by the court, — jury waived. Plaintiff called a witness, and asked him to refer to a plat and read an entry. What the plat was, or what the entry would have referred to, is not shown in the record. At that stage the investigation in that direction was interrupted by an admission "that A. Plaster entered the land in question December 27, 1869." Then the plaintiff, Thomas E. Plaster, was called and asked "if you are the identical person that that land was entered for by your guardian. A. Yes, sir." Cross-examined, he said that his guardian's name was T. J. Matlock, that his father's name was Thomas Plaster, and that his own name was Thomas Alexander Plaster, but that it had always been signed, "Thomas E. Plaster." He had never sold the land himself, and knew nothing about the sale in 1869. He was born June 23, 1862. "Q. Were you ever in possession. A. I never lived on it at all. I worked on it when I was a small chap. Q. How long has Grabeel been in possession? A. I can't tell you. Q. How long since you have been in possession of the land? A. I hain't been in possession at all." Re-examined: "Q. You were living with your guardian when you worked on it? A. Yes, sir. Q. That was about 1869 or 1870? A. I don't know just when it was. Q. When did your father die? A. He died three or four days before I was born. * * * Did your father live on that tract of land when he died? A. No, sir; this land was entered, if I understand it right, with his money, for me. Q. After he was dead? A. Yes, sir; after he was dead." With that evidence, the plaintiff rested. Defendants introduced deeds as follows: Thomas J. Matlock to James G. McGee, 5th September, 1870, recorded April 1, 1887; James McGee and wife to Jesse J. McGee, April 27, 1886, recorded April 1, 1887; Jesse J. McGee and wife to Nancy H. Grabeel, November 23, 1887, recorded March 1, 1888; Nancy H. Grabeel to Andrew J. Grabeel, February 13, 1895, recorded ____ (date of record not given in abstract). The deed from Matlock to McGee described the grantor as "Thomas J. Matlock, guardian of Thomas Plaster." In other respects it was simply a warranty deed from Matlock to McGee, not purporting to have been made in pursuance of an order of the county court, nor to convey the title of a ward. The evidence shows that up to that time no one had lived on the land, but that Matlock lived near it, and had cleared and cultivated a small patch, — two, three, or four acres. McGee went into possession under his deed, and continued to cultivate the cleared part, but did not reside on the land. He, or his son Jesse, to whom he sold it, extended the clearing, until when the latter sold to Grabeel there were some 10 or 12 acres cleared, fenced, and in cultivation. Grabeel had homesteaded an adjoining 40, and, when he bought from Jesse McGee, moved on his 40 in a house within 25 or 30 feet of the line of the land in suit, and immediately began to cultivate and enlarge the clearing on this land. That was October 15, 1887, and the Grabeels have been in possession ever since, and have made improvements on it. At the close of the evidence plaintiff offered to prove that defendants lived on a tract adjoining the land in suit, and only had a narrow strip in cultivation, and never had any deed recorded until about 1889 (probably misprint for 1887), and the plaintiff knew nothing of any adverse claim or possession, which evidence the court declined to hear, and plaintiff excepted. The finding and judgment were for defendants, and the plaintiff appeals.

Harrison, Boone & McClendon, for appellant. W. A. Love, for respondents.

VALLIANT, J. (after stating the facts).

The plaintiff's evidence can scarcely be said to have made a prima facie case for him, and if it had been held by the trial court that he failed on his own proof the judgment would not have...