Smith v. Johnson

• Decision Date: 22 December 1891
• Citation: 18 S.W. 21,107 Mo. 494
• Court: Missouri Supreme Court
• Parties: SMITH et al. v. JOHNSON et al.

18 S.W. 21

107 Mo. 494

SMITH et al. v. JOHNSON et al.

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

APPEAL — MATTERS NOT APPARENT ON RECORD — ADVERSE POSSESSION — TAX-DEED AS COLOR OF TITLE.

1. Under rules of court requiring the appellant to set forth in his printed abstract "so much of the record as is necessary to a full and complete understanding of all the questions presented" to the supreme court, where an appellant assigns error in refusing to give and in giving instructions, but does not set forth such instructions in his abstract, it must be presumed that the action of the court in that respect is not relied upon as error, and also that all proper declarations of law were given.

2. Possession under a tax-deed is possession under color of title, sufficient to support a plea of adverse possession of lands beyond the statutory period within which an action must be brought to recover the same.

Appeal from circuit court, Greene county; W. D. HUBBARD, Judge.

Action of ejectment by O. B. Smith and another against William H. Johnson and another. Judgment for defendants. Plaintiffs appeal. Affirmed.

W. C. & B. B. Price, for appellants. Chas. W. Thrasher, for respondents.

MACFARLANE, J.

This is an action of ejectment, commenced in 1888, to recover the north one-half of lot 24, in block 6, in the town of Springfield. The judgment was for defendants, and plaintiffs appealed. Plaintiffs showed prima facie a legal title to the lot, and defendants undertook to support their right thereto by evidence of previous adverse possession for 10 years.

1. The rules for the government of the practice in the supreme court require the appellant or plaintiff in error to set forth in his printed abstract "so much of the record as is necessary to a full and complete understanding of all the questions presented to this court for its decision." Plaintiffs assign as error the refusal of the court to give instructions asked by them, and its action in giving instructions asked by defendants. The instructions are not set forth in their abstract, and these alleged errors cannot be considered. In such case it must be presumed that the action of the court in this regard is not relied upon as grounds for reversal of the judgment. The instructions not being before us, and the action of the court in giving and refusing them not being relied upon as error, we must presume also that the circuit court ruled correctly, and that all proper and necessary declarations of law were given. Long v. Long, 96 Mo. 180, 8 S. W. Rep. 766; Jayne v. Wine; 98 Mo. 404, 11 S. W. Rep. 969; Craig v. Scudder, 98 Mo. 664, 12 S. W. Rep. 341.

2. The only question, then, for our further consideration is whether the evidence tended to prove that defendants, and those under whom they claim, had acquired the right to hold the property by virtue of a sufficient previous adverse possession. This question makes necessary a brief review of the evidence. No title was shown from the government. Greene county seems to have been accepted as the common source of title. On the same day, — November 1, 1837, — Daniel B. Miller, as commissioner of Greene county, made and delivered two deeds to lot 24, block 6, of the town of Springfield, — one to W. R. Smith, the ancestor of plaintiffs, under whom they claim by inheritance. This deed was recorded in 1838. The other was made to William Patton, which was not recorded until 1840. Defe...