Smith v. McCorkle

• Decision Date: 02 June 1891
• Citation: 105 Mo. 135,16 S.W. 602
• Parties: SMITH v. McCORKLE.
• Court: Missouri Supreme Court

16 S.W. 602

105 Mo. 135

SMITH v. McCORKLE.

Supreme Court of Missouri, Division No. 2.

June 2, 1891.

ADVERSE POSSESSION — BOUNDARIES — ADJUSTMENT.

1. While the legal title remains in the government, the statute of limitations will not run for any purpose in favor of one in possession of land without right, and, under Act Cong. June 6, 1874, (Laws 43d Cong. p. 62,) granting, releasing, and relinquishing certain lands "to the respective owners of the equitable title thereto and to their heirs and assigns forever," the statute of limitations cannot be considered as determining who were the owners of the equitable title.

2. Where an agreement has established a disputed boundary, subsequent conveyances by the parties to the agreement and their privies by the same descriptions as those under which the title was acquired and possession held prior to the agreement will pass the title according to the agreed boundary.

3. Having conveyed certain land to his children, reserving a life-interest in himself, the father entered into an agreement establishing a disputed boundary. On his death the children made another agreement establishing the boundary on the opposite side of the land, and therein they referred to the boundary agreed on by their father as the basis from which measurements were to be made. Held, that the reference by the children to the line agreed on by the father, and their subsequent conduct in maintaining the line so agreed on, was a ratification of the boundary established by their father.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

H. H. Denison, for appellant. Hitchcock, Madill & Finkelnburg, for respondent.

MACFARLANE, J.

The suit is ejectment for an undivided one-third of a strip of land in the city of St. Louis, having a front of 131 feet along the eastern line of United States survey 378, which line is now Union avenue, and running back westerly about 4,000 feet. It is unnecessary to give the exact description. The beginning point is given as 5,053 feet 1½ inches south of the northern boundary of said survey 378; thence running south with the eastern line of said survey 131 feet; thence west, etc. The title originated in a Spanish concession to Marie Louise Chouteau Papin, dated in 1796. This concession was for 40 arpents north and south, by 80 arpents east and west, and was in 1807 divided by the grantee into 13 lots, running east and west, numbered from the north; the first 10 lots being 2½ arpents wide and 80 long, east and west, and lot 11, 10 arpents wide with same length as others. In June, 1810, the concession was confirmed by the board under act of congress, and called "United States Survey 378." In 1849, by a series of regular conveyances, James W. Kingsbury had become the equitable owner of lots 9 and 10; Stanislaus Prouhet the north fourth of lot 11, and Robert Forsyth the next adjoining fourth of lot 11. About this time it was learned that there was a surplus frontage to survey 378, and disputes arose among the owners of the lots as to the true boundary line. On the 10th of September, 1849, by agreement, the boundary between lots 10 and 11 was settled by Kingsbury and Prouhet. Previous to this settlement Prouhet and wife had conveyed the lot owned by them to their children, reserving a life-interest in themselves and the survivor. Prouhet died soon after making the agreement with Kingsbury. In 1850 the three children of Prouhet and Forsyth by agreement established the line between their tracts. This agreement referred to the previous agreed boundary between their father and Kingsbury as the basis from which measurements were to be made. These agreements were both in writing, and were recorded. Monuments were fixed, marking these division lines; fences were adjusted; and possession taken in accordance with the agreement. The Prouhet children, by separate deeds, conveyed their tract to Forsyth, who on April 7, 1853, conveyed the north half of the east end of this tract to James W Kingsbury, who took possession. The south line of the possession taken was a line equidistant between the two lines established by the two agreements. The land in dispute is 131 feet immediately north of the line of the possession taken by Kingsbury. James W. Kingsbury died in June, 1853, leaving a will, by which he provided with reference to this tract in survey No. 378 as follows: "This tract of land I do not wish to go to my children, nor be divided between them, until the end of twenty years from my death;" and again it says: "At the end of the said term of twenty years the whole of said tract of land, including the farm and homestead, to go to my said children and their heirs, in absolute property, under the first article of this will." The will provides that in the mean time the executors are to rent or lease the land for the support of the children. James W. Kingsbury left three children, viz.: Virginia married Degiverville; Adele Louise married Waterman; Jules C. Kingsbury, who died unmarried May 20, 1867. April 12, 1858, Jules C. Kingsbury, by a warranty deed, conveys to his uncle Thomas H. C. Kingsbury an undivided third interest in various pieces of property which he had acquired from his father. Among the tracts described in this deed is the north half of the east end of the Prouhet tract in survey 378, and which had been acquired by his father as above stated. It is described in the deed as follows: "A certain tract of land in survey No. 378, formerly the property of Marie Louise Chouteau Papin, containing 67 acres, more or less, and bounded as follows: North by land of Kingsbury, south by land of Forsyth, and...