Saucer v. Kremer
| Decision Date | 05 March 1923 |
| Citation | 249 S.W. 640,297 Mo. 461 |
| Parties | ROSE E. SAUCER et al., Appellants, v. MARIA KREMER |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Charles B. Davis Judge.
Affirmed.
Harmon J. Bliss and Walter F. Schelp for appellants.
(1) The Act of June 13, 1812, ex proprio vigore, vested title in all persons claiming under its provisions. Vasseur v Benton, 1 Mo. 212; Tyler v. Wells, 2 Mo.App 521; Gurno v. Janis, 6 Mo. 330; Page v. Scheibel, 11 Mo. 167; City of Carondelet v. City of St. Louis, 25 Mo. 448, 459; Milburn v. Harvey, 28 Mo. 592; Fine v. St. Louis Public Schools, 30 Mo. 166, 176; St. Louis v. Schoenthaler, 40 Mo. 272; Baird v. St. Louis Hospital, 116 Mo. 426-7; Guitard v. Stoddard, 16 How. 510; Savignac v. Garrison, 18 How. 136. (2) Possession in law of land means the assertion of the right of ownership over the property by improving it or using it for any purpose. Possession may be established by enclosure, cultivation or by any use that clearly indicates the appropriation and actual use of a person claiming to hold it. Latta v. Clifford, 47 F. 614. (3) The possession of a person once in occupancy of a tract of land is presumed to have continued indefinitely until it is affirmatively shown that such possession ceased. A fact once proved to exist, the law will presume its continuance. Janssen v. Stone, 60 Mo.App. 402; Cargile v. Wood, 63 Mo. 501. (4) Where the evidence shows that the parties plaintiff and defendant have a common source of title, then irregularities in conveyances prior to the common source become weaknesses common to both litigants and hence immaterial. Ebersole v. Rankin, 102 Mo. 488; Harrison Machine Works v. Bowers, 200 Mo. 219, 235; Grandy v. Casey, 93 Mo. 595; Smith v. Lindsey, 89 Mo. 76. (5) Where several heirs take land by devise or inheritance, these heirs are tenants in common of such land and where some of such heirs convey their interest to strangers to the title such grantees are likewise tenants in common with the heirs not conveying. The grantees of such strangers to the title and descendants of the non-conveying heirs are also tenants in common. 1 Washburn on Real Property (3 Ed.) pp. 526, 563. (6) The distinctive quality of tenants in common is unity of possession. Their possession being common, and each having a right to occupy, not only will such possession, though held by one person, be presumed not to be adverse to his co-tenant, but it is, ordinarily, held to be for the latter's benefit, so far as preserving his title thereto, the possession of one tenant in common being deemed to be the possession of all. 1 Washburn on Real Property (3 Ed.) p. 566; Long v. McDow, 87 Mo. 197; Benoist v. Rothschild, 145 Mo. 399, 408; Golden v. Tyer, 180 Mo. 196, 201; Coberly v. Coberly, 189 Mo. 1; Chapman v. Kullman, 191 Mo. 237; Collier v. Gault, 234 Mo. 457; Robidoux v. Cassileggi, 10 Mo.App. 516; Hill v. Allen, 12 Mo.App. 580. (7) Where a party is in possession of land as one of several tenants in common, nothing short of an open and explicit disavowal and disclaimer of a holding under the common title, and an assertion of title in himself brought home to the owner, will establish adverse possession. There must be an actual or constructive ouster by the tenant in possession before he can be considered as holding adversely to other tenants in common. The presumption is that the possession is friendly. Johnston v. Prewitt, 32 Mo. 558; Budd v. Collins, 69 Mo. 139; Estes v. Long, 71 Mo. 609; Long v. McDow, 87 Mo. 202; Gorden v. Eans, 97 Mo. 603; Meier v. Meier, 105 Mo. 432; Benoist v. Rothschild, 145 Mo. 399, 408; Mo. Lumber & Mining Co. v. Jewell, 200 Mo. 707, 715; Heckescher v. Cooper, 203 Mo. 278, 293; McCune v. Goodwillie, 204 Mo. 306, 339. (8) In general to constitute an effective adverse possession there must be: First, the ouster of the real owner followed by an actual possession by the adverse claimant; and, second, an intention on the part of the latter to so oust the owner and possess for himself. Meier v. Meier, 105 Mo. 432; Swope v. Ward, 185 Mo. 234. If the possession in its inception was friendly, then it could not be converted into one of hostility by mere intention. Some notice or act indicative of an intent of disseizin is necessary. Hamilton v. Boggess, 63 Mo. 249; Budd v. Collins, 69 Mo. 137; Estes v. Long, 71 Mo. 609; Spencer v. O'Neill, 100 Mo. 49; Comstock v. Eastwood, 168 Mo. 48; Combs v. Goldsworthy, 109 Mo. 160. (9) To convert a friendly possession, as in cases of tenants in common, into an adverse possession, the intention to make the change must be distinctly made known to the true owner. There must be the intention to oust followed by some overt act. Tyler on Eject. p. 876; Warfield v. Lindell, 38 Mo. 581; Wommack v. Whitmore, 58 Mo. 448; Budd v. Collins, 69 Mo. 129; Wilkerson v. Thompson, 82 Mo. 317; Gordon v. Eans, 97 Mo. 587; Meier v. Meier, 105 Mo. 411; Golden v. Tyer, 180 Mo. 196, 201; Hynds v. Hynds, 253 Mo. 200; McClung v. Ross, 5 Wheat. 116. (10) Whatever a deed of a tenant in common may profess to dispose of, the grantee, as between himself and his co-tenants, can obtain no greater interest than his grantor had the right to enjoy. The recording of such deed does not, consequently, constitute an act of ouster. Benoist v. Rothschild, 145 Mo. 399, 408; Edwards v. Bishop, 4 N.Y. 61; Purcell v. Wilson, 4 Gratt. 16; Caldwell v. Neely, 81 N.C. 114.
A. G. Eberle and Wm. McNamee for respondent.
(1) Defendant has been in the actual, open, adverse, hostile, exclusive and continuous possession of the lands in suit under color of title since the 27th day of May, 1906, for a period of more than ten years prior to the institution of this suit, and such possession not only bars plaintiffs' recovery, even if they had had title, but vests perfect title in defendant. Sec. 1305, R.S. 1919; Franklin v. Cunningham, 187 Mo. 184, 196; Kirton v. Bull, 168 Mo. 622; Scannell v. American Soda Fountain Co., 161 Mo. 606; Johnson v. Calvert, 260 Mo. 442, 457; Real Estate Co. v. Megaree, 280 Mo. 41, 55. (2) Conceding for the sake of argument that, on the 27th day of May, 1906, the plaintiffs had title to an undivided one-half of the lands in suit, and that defendant by her purchase of the land from Fisher became a cotenant with plaintiffs, nevertheless her possession from that time on was exercised, manifested and accompanied by such outward acts of exclusive ownership of such an unequivocal character, overt and notorious, and of such a nature as by their own import served to impart information and give notice to the co-tenants that an adverse possession and an actual disseizin was intended to be asserted against them. Warfield v. Lindell, 38 Mo. 561; Hart v. Eldred, 264 Mo. 148, 151; Allen v. Morris, 244 Mo. 357; Nickey v. Leader, 235 Mo. 30, 43; Hendrix v. Musgrove, 183 Mo. 300, 309; Peck v. Lockridge, 97 Mo. 491; Hudson v. Hudson, 139 Mo. 236; La Peyre v. Paul, 47 Mo. 586; Campbell v. Laclede Gas L. Co., 84 Mo. 352, 374. (3) The placing of her own deed on record and the execution and recording of the deed of trust to Fisher on the 29th day of May, 1906, was an open, solemn and public declaration of her claim to exclusive ownership, and gave notice to the world of her claim, and her possession from that time on was adverse and hostile, and ripened into title on May 30, 1916. Hendrix v. Musgrove, 183 Mo. 300, 310; Johnson v. Calvert, 260 Mo. 442, 457; Hart v. Eldred, 264 Mo. 148, 151; Campbell v. Laclede Gas Co., 84 Mo. 352, 375. (4) And it is not necessary that such notice should be brought home to the ousted co-tenant. McClanahan v. McClanahan, 258 Mo. 579, 596; Hendrix v. Musgrove, 183 Mo. 300, 309; Boyce v. Missouri Pacific Ry. Co., 168 Mo. 583, 593; Meisenheimer v. Amos, 221 Mo. 362, 371; Allen v. Morris, 244 Mo. 357, 364; Dunlap v. Griffith, 146 Mo. 283, 294; Whittaker v. Whittaker, 157 Mo. 342, 356; Peck v. Lockridge, 97 Mo. 549, 560; Campbell v. Laclede G. L. Co., 84 Mo. 352, 374; La Peyre v. Paul, 47 Mo. 586, 591; Warfield v. Lindell, 38 Mo. 561, 585; Warfield v. Lindell, 30 Mo. 272, 282. (5) Appellants not having been in possession of land in dispute for thirty consecutive years prior to August 1, 1918, and not having paid any taxes thereon for all that period of time, and their further failure to bring any action for the recovery of said land within one year from said date, August 1, 1918, forever barred them from recovery and ipso facto vested title in the possession, this respondent. Sec. 1884, R.S. 1909; Laster v. Cunningham Land Co., 213 S.W. 91; Campbell v. Greer, 209 Mo. 199; Gram v. Peterman, 200 Mo. 295. (6) Where evidence shows that parties were in possession of land, but does not disclose or identify the parties, the law presumes that the record owner was in possession. Brannock v. McHenry, 252 Mo. 1; Weir v. Lumber Co., 186 Mo. 388.
SMALL, C. Brown and Lindsay, CC., not sitting.
Suit to quiet title to about fourteen acres of land in the city of St. Louis.
Plaintiffs set out in detail their chain of title in their petition. It in substance, alleges, that on the sixth day of December, 1796, the Government of Spain granted to Gabriel Constant a concession of two hundred arpents of land on the north bank of the River des Peres, and that the land sued for was included in this grant. That said concession was afterwards duly recorded in the United States Land Office and confirmed by the Act of Congress of June 13, 1812. That said Gabriel Constant died intestate and left as his only heir, Gabriel Constant, Jr., who died about October 10, 1831, leaving a last will and testament by which he devised the land to his four daughters, Mary Louise, Constance, Lucile and Julie Constant, to be divided equally between them. That ...
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