Prewitt v. Burnett

• Decision Date: 31 August 1870
• Citation: 46 Mo. 372
• Parties: DAVID PREWITT et al., Respondents, v. JAMES BURNETT et al., Appellants.
• Court: Missouri Supreme Court

46 Mo. 372

DAVID PREWITT et al., Respondents,

v.JAMES BURNETT et al., Appellants.

Supreme Court of Missouri.

August Term, 1870.

Appeal from Fourth District Court.

A. W. Mullins, for appellants.

I. Agreements in regard to boundary lines, like all other agreements, are of no binding force upon the parties if founded upon mutual mistake in material facts. (Knowlton v. Smith, 36 Mo. 507, 513-14; Menken v. Blumenthal, 27 Mo. 198, 203-4.)

II. Color of title, with possession of a part of a tract, extends such possession no further than that embraced in the deed showing color of title. It can not include any part of adjoining tracts. (Cottle v. Sydnor, 10 Mo. 765 et seq.) When a person is in possession of part of a tract of land, with color of title to the whole, he is deemed to be in the actual possession of the whole, because the entry under such deed explains the intention of the party-- which would otherwise be uncertain--when he performs the act. (Hardisty v. Glenn, 32 Ill. 64.) The fact of such intention to hold, and the claim beyond the actual possession, can be established as well by any other competent evidence as the deed. The courts have even gone so far as to admit the declaration of a party at the time of his entry to show the extent of his possession. (Hardisty v. Glenn, 32 Ill. 64; Blackw. Tax Tit., ch. 39, p. 664, ed. 1855.) And when the claim and intent to hold beyond the actual occupancy is shown by any competent evidence, the possession will be extended coextensive with such claim and intention.

BLISS, Judge, delivered the opinion of the court.

The plaintiffs and defendant were adjoining proprietors, and the litigation grew out of an attempt on the part of defendant to re-adjust the boundary line. In 1854 the line was run by the county surveyor, and defendant's grantor, supposing it to have been correctly located, placed his fence upon it, and plaintiff cultivated up to it. In 1869 the defendant procured a re-survey, which placed the dividing line further south, so as to include a strip hitherto in possession of the plaintiffs; and having moved his fence so as to take in the disputed strip, the plaintiff brought his action of forcible entry and detainer, and obtained judgment. Among the questions decided by the court and excepted to by the defendant was the old one so often decided, and always in the same way, to-wit: that previous peaceable possession by the plaintiff, and not the right of possession, is all that is necessary to enable him to maintain this action. Many of the instructions to the jury, asked for by defendant and refused, seem to have been based upon the idea that the correctness of the location of the fence and the right to the possession of the parcel of land between the old and new fence were involved. But those questions, as we have so often...