Schultz v. Lindell

• Decision Date: 31 March 1860
• Citation: 30 Mo. 310
• Parties: SCHULTZ et al., Appellants, v. LINDELL et al., Respondents.
• Court: Missouri Supreme Court

30 Mo. 310

SCHULTZ et al., Appellants,

v.LINDELL et al., Respondents.

Supreme Court of Missouri.

March Term, 1860.

1. The actual possession of a part of a tract of land by the rightful owner carries with it the constructive legal possession and seisin of the whole tract so far as the same is not actually occupied adversely by another.

2. Where, however, the true owner of a tract of land is not in the actual possession of any portion of such tract, the actual possession of a part of the same by another, who is in such possession under a colorable title to the whole, will carry with it a constructive possession of the whole tract as against such true owner.

3. Where a large tract embraces and includes several smaller tracts, an actual possession by the owner of the large tract of a small portion of the same outside of one of the smaller tracts included in it will not be construed to be a constructive adverse possession of such smaller tract against the true owner thereof, although the latter may not be in the actual possession of any portion of his tract.

4. Where a defendant in ejectment seeks to show an outstanding title in another, and offers in evidence a deed executed by the same parties under whom plaintiffs claim, he may by extrinsic evidence, if the descriptions and calls of the two deeds are different but not repugnant, show that the calls are such as will make the deed under which defendant claims embrace the same land conveyed to plaintiffs.

5. The opinion of a surveyor as to the proper location of a grant or conveyance of land is inadmissible in evidence to determine such location.

Appeal from St. Louis Land Court.

This was an action to recover possession of a portion of a tract of one by forty arpens of land situated in the Grand Prairie common field, near St. Louis. This case has heretofore been before the supreme court. (See 24 Mo. 567.) The action was commenced September 19, 1855. Said tract of one by forty arpens was confirmed by act of Congress of July 4, 1836, to William Bizette's representatives, and surveyed by United States survey No. 3340. Plaintiffs also claim title under John B. Provenchere, to whom, it is alleged, the land was confirmed by act of Congress of June 13, 1812.

The defendants denied the plaintiffs' right of possession and set up the statute of limitations.

The plaintiffs introduced evidence tending to prove the claim, cultivation and possession of the lot in question by John B. Provenchere, an inhabitant of the town of St. Louis, as the last claimant and cultivator prior to December 20, 1803; also the location and boundaries of the lot, and its identity with that surveyed by United States survey No. 3340; the death of John B. Provenchere; that Jean Louis Provenchere was his son and entitled as heir to one-half of said lot. Plaintiffs showed a derivative title from said Jean L. Provenchere to said half. Plaintiffs adduced in evidence, to make out this derivative title, a deed, dated July 29, 1816, and acknowledged July 31, 1816, executed by Mary Provenchere, widow, and said Jean Louis Provenchere, son of said John B. Provenchere, conveying to Risdon H. Price a tract described as follows: “A certain tract or parcel of land situate, lying and being at the place commonly known by the name of Big Prairie, about three and a half miles west of St. Louis, and containing one arpent in front by forty arpens on the rear, bound north by land now belonging to Joseph Lacroix, as it is said, and south by land cultivated formerly and said to belong to one Simoneau, it being the same tract or parcel of land which the said John B. Provenchere, in his lifetime, cultivated for many consecutive years prior to 1803.”

The defendants, for the purpose of showing title out of plaintiffs, offered in evidence a deed from the grantors of the above conveyance--Mary and Jean Louis Provenchere--to Joseph Phillipson and Sylvester Labadie. This deed was dated and acknowledged July 25, 1816. The land conveyed by this deed was described as follows: “A tract of land lying and being situate at about three miles and a half in the western part from the town of St. Louis, at the place commonly denominated ‘Grand Prairie;’ which land contains two arpens in front by forty in depth, and is bounded on the north side by a road thirty-six feet broad, which separates it from the land which Pierre Chouteau bought of Alexis Marie, and on the south side by the land of an owner unknown; on the east and west by vacant lands; which land belongs to us, as having been cultivated during a number of years by the said Jean Baptiste Provenchere, deceased, and whose heirs we are,” &c.

The defendants introduced as witnesses Augustus H. Evans and William H. Cozens, practical surveyors, into whose hands the above deeds to Price and to Phillipson and Labadie, as also various other deeds conveying lots in the Grand Prairie common field, were placed; the testimony of a witness, Noisé, was also read to said witnesses from the notes of counsel, and they were asked to state, as experts, where, by the calls in said deeds and the testimony, they would locate the tracts conveyed by said deed. The witnesses were permitted to answer these questions against the objection of the plaintiffs. Other evidence was introduced bearing upon the locations of the tracts conveyed by said two deeds of Mary and Jean Louis Provenchere.

Evidence was also adduced with a view to support the defence of the statute of limitations. The defendants put in evidence deeds conveying to them the land embraced within the Hunot and Conway New Madrid locations; also other arpent lots in the Grand Prairie. The New Madrid locations included said smaller tracts and also much more besides. Evidence was introduced showing an actual possession, for twenty years, on the part of the said Lindell, of a portion of said New Madrid locations outside of the lot in controversy. No deed was shown conveying to defendants the particular lot in controversy.

The court gave the following instructions at the instance of the plaintiffs: “1. If the jury believe from the evidence that John Baptiste Provenchere, as an inhabitant of the town or village of St. Louis, prior to the 20th day of December, 1803, claimed and cultivated or possessed the lot of land mentioned and described in the petition as a common field lot adjoining or belonging to said town or village, and was the last claimant and cultivator thereof prior to that date; and if the jury further believe from the evidence that said John Baptiste Provenchere died prior to the 29th of July, 1816, leaving Mary Provenchere, his widow, and a son, Jean Louis Provenchere, and a daughter, Madame Lajoye, as his only heir or heirs living at his death, and that the deeds given in evidence by the plaintiffs to show a derivation of title to them from said Jean Louis and widow Mary Provenchere are genuine, and that the lot mentioned in said deeds is the same lot which was so claimed and cultivated or possessed as aforesaid by said John Baptiste Provenchere, then the plaintiffs are entitled to recover one undivided half of so much of said lot as the jury find to have been in the possession of the defendant at the commencement of this suit lying outside of the Mad. Camp survey; unless the jury also find that the lot mentioned and described in the deed of said Mary and Jean Louis Provenchere to Joseph Phillipson and Sylvester Labadie, dated July 25, 1816, covered the same land mentioned and described in said deeds given in evidence by the plaintiffs. 3. The jury are instructed that the legal seisin and possession follow a title under the act of Congress of June 13, 1812, and that the defendants, setting up an adverse possession for twenty years against such legal seisin and possession, must show by evidence, to the satisfaction of the jury, that they or either of them have had a visible, notorious and continuous possession of the land in controversy during the period next before the commencement of this suit; otherwise the statute of limitations is no defence against such a legal title and possession. 4. The jury are instructed that the United States survey No. 3340, given in evidence by the plaintiffs, is evidence of the location, extent and boundaries of the lot which was confirmed by the act of July 4, 1836, to Guillaume Bezette's legal representatives; and if the jury believe from the evidence that the same lot came into the possession of John Baptiste Provenchere, and was claimed, cultivated or possessed by him, and in his own right, as an inhabitant of the town of St. Louis, as a common field lot, adjoining or belonging to said town, prior to the 20th of December, 1803, as the last claimant and cultivator thereof prior to that date, then said survey is evidence of the location and boundaries of the lot claimed and cultivated or possessed by him.”

The court refused the following instruction asked by the plaintiffs: “2. If the jury believe as required by the foregoing instruction No. 1, in order to enable them to find for the plaintiffs, then the jury is further instructed that the defendants have given no evidence of adverse possession of the land in controversy for twenty years next prior to the commencement of this suit, which is sufficient in law, if true, to constitute a bar to this suit under the statute of limitations.”

The court gave the following instructions at the instance of the defendants: “1. If the jury believe from the testimony that the defendants, or either of them, have had possession of the land in question, using and claiming the same as their own, and holding it adversely to the plaintiffs and to those under whom they claim for the space of twenty years or more next before the commencement of this suit, the jury ought to find for the defendants. 2. And as to what is possession in the sense of the above instruction, if the jury find that the defendants entered into possession of part of the tract, claiming the whole by deed, and...