Thompson v. Stillwell

• Citation: 253 Mo. 89,161 S.W. 681
• Parties: THOMPSON et al. v. STILLWELL.
• Decision Date: 06 December 1913
• Court: United States State Supreme Court of Missouri

161 S.W. 681

253 Mo. 89

THOMPSON et al. v. STILLWELL.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

1. APPEAL AND ERROR (§ 1010)—REVIEW— QUESTIONS OF FACT.

Under Rev. St. 1909, § 2535, providing that any person claiming any title, estate, or interest in real property may institute an action against any persons having or claiming any title, estate, or interest therein to ascertain and determine the estate, title, and interest of the parties respectively, where there is nothing in the pleadings giving the action an equitable character, the rules applicable in ordinary actions at law apply, and the trial court's finding, if supported by substantial evidence, will be affirmed.

2. ADVERSE POSSESSION (§ 85)—SUFFICIENCY OF EVIDENCE.

In an action to determine title to the west half of a quarter section of land, evidence held to support a finding that one claiming under a sheriff's deed to the whole quarter section entered in good faith and took and for 20 years held possession of part of the tract in the name and under claim of title to the whole.

3. ADVERSE POSSESSION (§ 100)—COLOR OF TITLE —SHERIFF'S DEED.

Under Rev. St. 1909, § 1882, providing that the possession under color of title of a part of a tract or lot of land in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract, shall be deemed a possession of the whole of such tract, a sheriff's deed issued to the purchaser at an execution sale was color of title to the whole of the land which it purported to cover.

4. ADVERSE POSSESSION (§ 16)—CHARACTER OF POSSESSION—EXERCISING ACTS OF OWNERSHIP.

Under such section, where part of a tract to which a party had color of title was fenced and cultivated, and another part unfenced and uncultivated, such person exercised the usual acts of ownership over the unfenced portion by cutting timber and selling standing timber thereon, and through his lessees keeping trespassers off and protecting the timber.

5. ADVERSE POSSESSION (§ 65)—HOSTILE CHARACTER OF POSSESSION.

That the fenced portion of a tract of land to which defendant's grantor had color of title was fenced by a third person by mistake did not render applicable the rule that one in mistaken possession of part of another's property claims only to the true line, and not adversely, where such third person subsequently occupied the tract as tenant of defendant's grantor, and did not set up title in himself.

Appeal from Circuit Court, Morgan County; John M. Williams, Judge.

Action by Alonzo H. Thompson against R. R. Stillwell, in which Alonzo H. Thompson and another were substituted as plaintiffs. Judgment for defendant, and plaintiffs appeal. Affirmed.

Amos A. Knoop, of Kansas City, for appellants. A. L. Ross, of Versailles, for respondent.

BLAIR, C.

This proceeding was commenced by Alonzo Thompson. Since the appeal was taken, he died, and Alonzo H. Thompson and Hattie I. Lindley, his sole heirs and devisees, have been substituted as appellants.

This is a suit to ascertain and determine title under section 2535, R. S. 1909. The land involved is the west half of the northeast quarter of section 2, township 41, range 19, Morgan county, Mo. The whole of the quarter section was patented to Henry Alcorn, who executed a deed therefor to John F. Baker, who, in turn, executed a deed for the same land to H. A. Swift, which deed was filed for record September 12, 1868, and on April 25, 1870, Swift executed a deed for the same land to Alonzo Thompson, and this deed was recorded April 30, 1870.

Respondent claims by mesne conveyances under Hugh Lynch, who purchased at a sheriff's sale on an execution on a transcript of a justice's judgment against John F. Baker in St. Louis county. This execution issued April 23, 1868. The execution was levied May 7, 1868, and the sale thereunder occurred September 22, 1868, and the deed from the sheriff to Lynch is dated September 23, 1868, and was filed for record January 6, 1871. Respondent also claims under the ten years' statute of limitation. Alonzo Thompson paid the taxes beginning with the year 1871, except for the years 1873, 1875, 1877 1889, 1893, 1895, and 1896. Lynch, in December, 1873, executed a deed to Max Joachimi, and he paid the taxes for the years in which Thompson did not pay them. Each of the two claimants knew the other was paying taxes. At the close of the evidence plaintiff's counsel requested the court, sitting as a jury, to give an instruction to the effect that under the pleadings and the evidence the finding must be for plaintiff. This the court refused to do. No other instructions were asked or given, and the court found for defendant, and rendered judgment accordingly.

This is a simple proceeding under section 2535, R. S. 1909, and there is nothing in the petition on answer which gives it an equitable character. The rules applicable in ordinary actions at law, therefore, govern the case in this court. Lee v. Conran, 213 Mo. 404, 111 S. W. 1151; Cousins v. White, 246...