Rozier v. Johnson

• Decision Date: 31 October 1864
• Citation: 35 Mo. 326
• Parties: FERDINAND ROZIER, Jr., Appellant, v. G. B. JOHNSON AND WIFE et al., Respondents.
• Court: Missouri Supreme Court

35 Mo. 326

FERDINAND ROZIER, Jr., Appellant,

v.G. B. JOHNSON AND WIFE et al., Respondents.

Supreme Court of Missouri.

October Term, 1864.

Appeal from St. Charles Circuit Court.

Whittelsey, for appellant.

I. The parties are tenants in common in the fee of that part of the land lying outside of the St. Charles commons, and were tenants in common in equity of that portion with the commons. At the time of the sale to McKnight & Brady, by Duquette's administrator, there was nothing but a claim to a tract of land, unconfirmed. The claim was presented for 6,000 arpens, with no definite location, but to be located near a particular place, Marais Temps Clair; and the recommendation was, that 400 arpens be confirmed, and 400 arpens were confirmed. There being no definite location, the claim required not only a confirmation, but also a survey, before the title attached to any particular land. (Montgomery v. Landusky, 9 Mo. 714; Stoddard v. Chambers, 2 How. 284; Bissell v. Penrose, 8 How. 317; Papin v. Massey, 27 Mo. 445; St. Louis v. Toney, 21 Mo. 243; Berthold v. McDonald, 24 Mo. 126; Menard's heirs v. Massey, 8 How. 293; Ashley v. Turley, 13 Mo. 430; Maguire v. Tyler, 25 Mo. 484.)

The deed of the administrator of Duquette conveyed the claim of Duquette to McKnight & Brady, and the title under the survey enured to the benefit of the assignees, and it was not necessary that the deed should describe the land by metes and bounds. The rules of the common law are inapplicable to the construction of Spanish concessions and claims. (Bird v. Montgomery, 6 Mo. 510; Mullanphy v. Redman, 4 Mo. 226; Hogan v. Page, 22 Mo. 55.) Claims liable to sale -- Landes v. Perkins, 12 Mo. 238; Landes v. Brant, 10 How. 348.

II. The parties being tenants in common, claiming through the same deed, the defendant upon the purchase of the outstanding title to part of the land became trustee for her cotenant, who is entitled to the benefit of the compromise upon contribution to the common burden. (Rozier v. Griffith, 31 Mo. 171; Picot v. Page, 26 Mo. 398, 420, 421; Van Horne v. Fonda, 5 J. Ch. 388, 406; Beauchamp v. Venables, 3 Dana, 326; Phelan v. Kelly, 25 Wend. 389; Jackson v. Strader, 5 Cow. 529; Jackson v. Hinman, 10 J. R. 292; Lee v. Fox, 6 Dana, 171, 176; Notes to Keech v. Sandford, 1 Wh. & Tud., L. C. Am. ed. 65, 67, 73; Feather-stonhaugh v. Fenwick, 17 Ves. 298, 310; Alden v. Fourdee, 3 Swan., 489; Faucett v. Whitehouse, 1 Russ. & Myl. 132; Smiley v. Dixon, 1 Pen. & Watts, 439, 441; Gabraith v. Elder, 8 Watts, 81, 95; Myers' Appeal, 2 Barr, 463, 466; Briton v. Hardy, 20 Ark. 381.)

The auditor's deed did not give any title to the ancestor of defendant, nor destroy the tenancy in common, for the reason that it was his duty to pay the taxes, and he could not acquire the title by bidding on the lands at a tax sale. (Morgan v. Herrick, 21 Ill. 481; Page v. Webster, 8 Mich. 363.)

III. The parties being tenants in common, and the plaintiff resorting to equity to enforce the resulting trust, is entitled to the remedy he seeks, of contribution and partition. (Agar v. Fairfax, 2 Wh. & Tud. L. C. Am. ed., p. 1, 485, notes; Welch v. Anderson, 28 Mo. 197; Spitts v. Wells, 18 Mo. 468; Allen v. Pipkin, 29 Mo. 229; Cartwright v. Pulteney, 2 Ath. 381; Hosford v. Merlin, 5 Barb. C. R. 51; Coxe v. Smith, 4 J. C. R. 276; Rozier v. Griffith, 31 Mo. 171.)

IV. Equity has jurisdiction to make partition, and at the same time to take and state an account for the rents received, improvements made or moneys paid for the common benefit. (See this case 31 Mo. 171; Notes to Agar v. Fairfax, 2 Wh. & Tud. S. C. p. 1, 485; 1 Sto. Eq. § 14; Turner v. Morgan, 8 Ves. 143; Munday v. Munday, 2 Ves. 122; 1 Sto. Eq. § 656, n. b., & c.; Spitts v. Wells, 18 Mo. 468.) A court of equity having acquired jurisdiction for one purpose, will do complete justice between the parties. (Keeton v. Spradling, 13 Mo. 321; Miller v. Wells, 5 Mo. 6; 1 Sto. Eq., § § 64, 69, 71; Russell v. Clark's Ex., 7 Cranch, 69; 8 Ves. 143; 2 Ves. 122.)

V. The parties being tenants in common, no actual ouster of plaintiff or his grantor is shown, because the possession of one is the possession of all, by presumption of law. There was no actual cultivation or enclosure of any part of the premises until the spring of 1850, and this suit was brought in 1859; there can be no pretence, therefore, that plaintiff's title is barred by the statute of limitations. Warfield v. Lindell, 30 Mo. 272, which seems conclusive of this case. As to what constitutes possession, see Harrison v. Cachelin et al., 27 Mo. 26. Possession, by presumption of law, always runs with the legal title until an actual adverse possession be shown. In overlapping claims, presumptive possession is with the legal title, and the ouster must be actual. (Cottle v. Sydnor, 19 Mo. 764; McDonald v. Schneider, 27 Mo. 405; Griffith v. Schwenderman, 27 Mo. 412.)

Neither party had title to the land within the commons until the compromise of 1857; there was no actual possession of that portion prior to 1850, and therefore as to that portion the statute has not run against the plaintiff, no matter what we say as to the part without the commons. But the plaintiff contends that no actual adverse possession is shown which bars his right to any part of the lands.

VI. Plaintiff claims that all the points in this case were decided in his favor when it was before the court in 31 Mo. 171, and that judgment should be entered for the plaintiff for the relief he seeks.

VII. The court erred in admitting the auditor's deed, no preliminary proofs being given to show his authority to make the deed. It claims to be a deed for the taxes of a nonresident, when the defendant's evidence shows that Duquette died in 1816, and the land was sold to McKnight and Brady by a recorded deed in 1817, and at the date of the tax (1833, and sale 1835) belonged to Griffith and the heirs of Brady as tenants in common.

VIII. The possession of the defendant, although adverse, did not deprive the plaintiff of his partition as decided when this case was before the court, 31 Mo. 171.

H. C. Lackland, for respondents.

Plaintiff ought not to maintain this suit for the following reasons:

1. The plaintiff has no title to any portion of said survey 1668.

2. Plaintiff is not a co-tenant with the defendants; he has no title in privity with that of defendants.

3. Plaintiff has no possession of said land, either actual or constructive; but, on the contrary, defendants were at the commencement of this suit, and are now, in the actual adverse possession of said land. Adverse possession is a bar to this suit in partition.

4. Defendants have had actual adverse possession of said land for more than ten years.

I. The plaintiff in the course of the trial showed no title to any portion of survey No. 1668.

II. Plaintiff is not a co-tenant of the defendant; their titles are not common. There is no privity or relationship between their titles. The title of defendants is hostile to that of plaintiff, and possession by defendants under their title, claiming the whole, must necessarily be hostile and adverse to plaintiff.

III. Defendants at the commencement of this suit were in the actual adverse possession of survey 1668. What are the facts that constitute adverse possession, is a question of law; but the facts themselves are to be found by a jury, or by the court sitting as a jury. The court sitting as a jury in this case, found these facts for the defendants. (Macklot v. Du Breuil, 9 Mo. 473.) Adverse possession for any length of time is a bar to an action in partition. It makes no difference whether the adverse possession originated by an ouster for a co-tenant, or by an entry and claim of the whole under a hostile title. The possession in this case did not originate (or arise) under an equitable title, nor under any title that is claimed to be equitable by the plaintiff.

The possession of the defendants did not originate under the title acquired from the city, which is the only one claimed by the plaintiff to be an equitable title. (1 Sto. Eq., Note 1 to § 650, and the authorities there cited; Vorh., N. Y. Code, p. 591, q. and the authorities there cited; Ang. Lim. p. 466, § 14; 26 Mo. 471; reaffirmed, 31 Mo. 171; Wilkins v. Wilkins, 1 Johns. Chan. 111; Phelps v. Green, 3 Johns. Chan. 305; Manners v. Manners, 1 Green's Chan. 384; Garret v. White, 3 Iredell, Eq. 131; Ramsey v. Bell, 3 Iredell, Eq. 209; Fleet v. Dorland, 11 How. Pr. 491-2; Hosford v. Merwin, 5 Barb. 51.) As to what constitutes adverse possession, vide Ang. Lim., p. 425, §§ 18, 19, 21, 22, 25, 26; Jackson v. Brink, 5 Cow. 483; Ellicot v. Pearl, 10 Peters, 432; 22 Mo. 70, 74, 75; 20 Mo. 186; 30 Mo. 310, 316; Schultz v. Lindell, 32 Mo. 554, &c., 557; 31 Mo. 398-9.

The defendants and their ancestors exercised every possible act of conclusive ownership over the land from 1830 -- 1836 to 1864, although they did not put a house and fence on the land until 1850. As to what constitutes ouster of one co-tenant by another, vide Ang. Lim. p. 462, §§ 11, 12, 13, 14, 15; 2 Greenl. Cruise Rl. Prop. Title XX. p. 402, § 14, note 3; Warfield v. Lindell, 80 Mo. 281, 286; Frederick v. Gray, 10 Serg. & Rawle, 182; Jackson v. Tibbets, 9 Cow. 241; Galbraith v. Galbraith, 5 Watts, Penn. 190; Bolton v. Hamilton, 2 Watts & Serg. Penn. 299, 308.

The fact that plaintiff brought suit for division of the rents and profits, is an admission that defendants refused to account to him for rents, & c., which amounts to an ouster. (Philips v. Greg, 10 Watts, 158.)

IV. 1. The title from the City of St. Charles to defendant, Eliza A. Griffith, is the only one claimed by plaintiff to be an equitable title. There is no equity in this title. Defendants never at any time occupied a position of trust or confidence towards plaintiff or his grantor. Defendant had been in the exclusive adverse possession of said land many years when she purchased said title. This was an issue raised by the pleadings,...