Scruggs v. Scruggs

• Decision Date: 31 January 1869
• Citation: 43 Mo. 142
• Parties: JOHN W. SCRUGGS, Defendant in Error, v. JAMES A. SCRUGGS and N. B. SCRUGGS, Plaintiffs in Error.
• Court: Missouri Supreme Court

43 Mo. 142

JOHN W. SCRUGGS, Defendant in Error,

v.JAMES A. SCRUGGS and N. B. SCRUGGS, Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1869.

Error to First District Court.

This was an action of ejectment, commenced by John W. Scruggs against James A. and N. B. Scruggs in the Circuit Court of Cole county, for possession of certain lands. The defendants pleaded the statute of limitations, which was the only question in the case.

The judgment of the Circuit Court was affirmed by the First District Court, to reverse which judgment the case is brought here by writ of error.

A. M. Lay, and G. T. White, for plaintiffs in error.

The Circuit Court erred in giving the instructions asked by plaintiff. The first instruction was not in accordance with the proof. The second instruction should also have been refused, because the jury were told that defendants, to avail themselves of the statute of limitations, must affirmatively show by proof that their possession must have been held adversely to all others, and that plaintiff knew it. Such is not the law. An adverse possession, as against plaintiff, was all that was required; and if there was any concealment by defendants whereby plaintiff was unable to know that they were holding adversely to him, or if there was any other fact to preclude his knowledge, that fact should have been set up in the replication. The eleventh instruction was erroneous. The jury ought to have been allowed to look at all the circumstances in the case, the relationship of the parties, and the character and manner of dealing that had been carried on between them.

Ewing & Smith, for defendant in error.

I. The Circuit Court did not err in giving the instructions for defendant in error. These instructions, or the most of them, are identical with those heretofore passed upon by this court. (41 Mo. 242.)

II. The second instruction given for the plaintiff, of which the defendants so much complain, is substantially the same as the third instruction asked and given defendants. Both plaintiff and defendants ask the court to declare that adverse possession of the land, to avail against the other, must be with the knowledge of the party holding the legal title thereto. Where both plaintiff and defendants ask a court to declare a like principle of law, and the court does so, the defendants, by their act, are estopped from complaining of the action of the Circuit Court. (Chamberlin v. Smith, 1 Mo. 482; Flowers v. Helm, 29 Mo. 324.)

III. As to what constitutes adverse possession, see 32 Mo. 558; 34 Mo. 44; 22 Mo. 267; 33 Mo. 35, 191, 176; 28 Mo. 483; Ang. Lim. 478, § 21.

CURRIER, Judge, delivered the opinion of the court.

This is an ejectment suit brought to recover possession of a tract of land in Cole county. The defense relied on is the statute of limitations; and the instructions given by the court, at the instance of the plaintiff, bearing on this defense, constitute the only subjects of inquiry in the cause. The second of these instructions is in these words: “To enable the defendants to avail themselves of the statute of limitations it must affirmatively appear to the jury by proof that their possession of the land in controversy must have been held adversely to all others (and that the plaintiff knew it) uninterruptedly for ten years prior to the commencement of this suit; and unless the jury are so satisfied, they will find for the plaintiff.” This...