Turner v. Baker

• Decision Date: 31 October 1876
• Citation: 64 Mo. 218
• Parties: HENRY S. TURNER, Appellant, v. LEVIN H. BAKER, et al., Respondents.
• Court: Missouri Supreme Court

64 Mo. 218

HENRY S. TURNER, Appellant,

v.LEVIN H. BAKER, et al., Respondents.

Supreme Court of Missouri.

October Term, 1876.

Appeal from St. Louis Circuit Court.

Glover & Shepley, for Appellant.

The evidence is conclusive, 1st, that the line was located at Lindell's west fence and lived up to from 1824 to 1845; 2nd, that Lindells were put in possession in 1852 and down possibly to 1855; 3rd, that in 1856 Lindell's people were out of possession, and Lucas' people in possession, and the Lindells commenced suit for whole vacant space; sued McLaughlin on the south, and Hannegan on the north side Washington Ave., they being adverse occupants. These facts entitle the plaintiff, who sued January 7, 1865, to a recovery.

The location of the line by the agreement and acquiescence of the parties was conclusive as to the title. (12 Wend. 130; Jackson vs. McConnell, Id. 422; Rockwell vs. Adams, 7 Cow. 762; 6 Wend. 469; 13 Wend. 539; 7 Johns R. 238; Lindell vs. McLaughlin, 30 Mo. 28; Taylor vs. Zepp, 14 Mo. 482; Chouteau vs. Goddin, 39 Mo. 250; Rutherford vs. Tracy, 48 Mo. 325; Dolse vs. Vodicka 49 Mo. 98; Finnegan vs. Canahan, 6 Barb. 257; Garnhart vs. Finney, 40 Barb. 449; Allen vs. Sales, 56 Mo. 29.)

Defendant's instruction No. 14 was erroneous. If no one was in actual possession, Lucas' representatives would be in constructive possession up to the located line. (Griffith vs. Schwenderman, 27 Mo. 412; City vs. Gorman, 29 Mo. 603; Miller vs. Shaw, 7 Id. 129; Barr vs. Graty, 4 Wheat. 224; Wells vs. Prince, 4 Mass. 65; Harrison vs. Cachelin, 23 Mo. 124; S. C. 35 Mo. 177.)

This instruction does not proceed upon the idea of a possession of part, and acts of ownership over the whole, but of acts of ownership by one out of possession.

The representatives of Lucas owned the land up to Lindell's west fence in 1854, their line having been fixed up to that fence, and when they entered and fenced it, it was vacant. Lindell's tenants were gone. Is it possible the Lindells could not abandon possession? That Lucas' representatives who owned the land could not enter upon their land and enjoy it? If not, who could? Could the Lindells who had no right west of their fence, and who would be trespassers beyond that line? (See 3 Blacks. 175; Henderson vs. Griffin, 5 Peters, 158; McIver vs. Regan, 1 Cooke, 366.) The possession of the Hannegans', by the consent of Lucas' representatives, made them their tenants. (See also Henman vs. Cranmer, 9 Barr, 40; Hard vs. Bodley, 5 Lit. 88; Taylor vs. Shields, 5 Lit. 295; 3 Wash C. C. 475-479.)

Henry L. Patterson and Wm. Fulton appeared in the suit the Lindells commenced against Hannegan in 1856, and were allowed to defend. This admitted Patterson and Fulton in possession of the whole tract sued for. Of course the Lindells were out of possession. (Doe vs. Brennan, 2 Dev. 174; Pope vs. Buckner, 1 B. Mon. 163; Bufort vs. Gaines, 6 J. J. Marsh. 39; Troublesome vs. Estill, 1 Bibb. 129.) The possession of Patterson and Fulton was hostile to Lindell's, not hostile to Lucas' representatives, Moore & Turner.

Defendant's instruction No. 15 was erroneous. It confounds the location of the line with the bar by limitation. The defense of limitation is wholly different. It concedes the want of title and relies on possession subsequent to the location of the line. But in this instruction the court says that no estoppel could be made out without such possession as would bar the cause of action.

The court erred in rejecting the record of the suit which the Lindells commenced February 19, 1856, to recover possession of the land in dispute from John Hannegan. It was offered to show that the Lindells at the date of that suit were not in possession of any of the land in dispute; that they admitted they were out of possession; that one of them swore that the plaintiffs were not in possession.

B. A. Hill, for Respondents.

I. The court below erred in giving the instructions asked by the plaintiff and given by the court of its own motion. The doctrine of estoppel does not depend upon the proposition stated in the instructions given for the plaintiff, but is better stated in those asked by the defendant and refused by the court.

To raise an estoppel so as to pass title to real estate from the Lindells to Lucas, there must have been an express design on the part of the Lindells that their acts or statements should influence the actions of Lucas, and they must have had a knowledge of the facts. The right of the Lindells and their heirs to the land can be lost or forfeited only by such conduct as would make it fraudulent and against conscience to assert it. (Combs vs. Cooper, 5 Minn. 254, presenting a learned review of the doctrine of estoppel in pais;Commonwealth vs. Moltz, 10 Barr, 530, 1, in point; Gavish vs. Proprietors of Union Wharf, 26 Me. [13 Shep.] 384, 393; Andrews vs. Lyons, 11 Allen, [[[[[Mass.] 349; Cumming's adm'r vs. Webster, 43 Me. 192; Rangely vs. Spring, 21 Me. 130; Wallace vs. Truesdale, 6 Pick. 445; Welland Canal Co. vs. Hathaway, 8 Wend. 430; Taylor vs. Ely, 25 Conn. 250; Preston vs. Mann, Id. 118; Copeland vs. Copeland, 28 Me. 525; Pickford vs. Sears, 6 Ad. & El. 469; see also Sullivan vs. Parks, 33 Me. 438; Witcher vs. Williams, 20 Conn. 98; Dyer vs. Coy, Id. 568; Steele vs. Putney, 3 Shep. 327; Strong vs. Ellsworth, 26 Verm. 367; Worrel vs. Lathrop, 30 Id. 307; McAfferty vs. Connover, 7 Ohio, N. S. 99; Lawrence vs. Brown, 1 Seld. 394; Taylor & Mason vs. Zepp, 14 Mo. 482; Jewett vs. Miller, 10 N. Y. 402.)

There is no evidence in this case that the Lindells ever made any declaration, or did any act, to induce Lucas to purchase the two arpents of land of O'Fallon, or to locate them upon the vacant space. It is manifest that neither the Lindells or Lucas ever knew anything in regard to the true boundary of their lands until 1845, when the Lindells had a survey made of the two by forty arpents. Then both parties ascertained their true lines, and the Lindells asserted their title and James H. Lucas would not assert his, but permitted the Finneys to possess until 1849, when they acquired title by the statute of limitations to Lucas' land.

The instructions for plaintiff are grossly erroneous, in making statements not shown by the evidence. (Miller vs. Platt, 5 Duer, N. Y. 272; Titus vs. Morse, 40 Maine, 348; Parker vs. Barker, 2 Met. 421; Richardson vs. Chickering, 41 N. Hamp. 380; Odin vs. Gove, Id. 465; Boggs vs. Wersel, 14 Cal. 279; Field, C. J. Id; Califf vs. Hillhouse, 3 Minn. 311.)

“Acquiescence in an erroneous line, and in an adverse possession in accordance therewith, is no bar to a recovery, unless continued so long that the statute of limitations attaches.” (Jackson vs. McConnell, 19 Wend. 175; Brewer vs. Boston & Worcester Railroad Co., 5 Met. 478; Talman vs. Sparhawk, Id. 469.)

There is not a single element of estoppel in this case. The whole scheme of the plaintiff rests upon this hypothesis, viz: That O'Fallon thought Fry's fence was his west line; that he told Lucas so, and innocently deceived him; that Lucas and O'Fallon told the Finneys so, and located them on Lucas' land; that the Finneys enclosed so as to hold by actual possession from 1829 until this day; that Lucas did not enclose the land of the Lindells, which he erroneously supposed belonged to him; that the Finney fence remained from 1829 to 1845, a period of sixteen years, before the Lindells and Lucas discovered the true lines of the tracts described in the deeds under which the parties claimed title; that the Lindells then asserted their title according to their deeds, and recovered the land up to Finney's fence in October, 1852, and entered into possession, and have held the lot ever since by actual possession of their tenants.

I have not been able to find a case in the books, where a plaintiff has sought to recover land in ejectment upon an estoppel in pais, from a defendant holding the true title by deed and the possession to support it.

When the Lindells commenced their suit against the trespassers, in 1845, for all their land, up to Finney's fence, Lucas was bound to assert his rights against the Finneys, and his negligence in doing so until 1849, gives him no claim against the Lindells.

II. The rule is well settled, that one who is not bound by estoppel cannot take advantage of an estoppel. (Lansing vs. Montgomery, 2 Johns. 382; 8 Wend. 480; Dezell vs. Odell, 3 Hill, 221; Jewett vs. Miller, 10 N. Y., 6 Seld. 402; Griffin vs. Richardson, 11 Iredell, 439; The Cohoes Co. vs. Goss, 13 Barb. 137; Hoffner vs. Noble, 11 Ill. 531; Wright vs. Hazen, 24 Verm. 143.)

There is no mutuality in this case between the Lindells and Lucas or their heirs. Lucas did not claim in any way under the Lindells, made no agreement with them, and did not act to fix a boundary line for them. If the Lindells, in 1827, had enclosed the Lucas land in the western half of the tract, and had held it for any period short of twenty years, they could have been ejected by Lucas; and there being no agreement between the parties in regard to the line or fence, the Lindells could not have claimed the benefit of an estoppel as against Lucas.

Lucas was bound to know his own lines, and the Lindells were under no obligation to fix them for him. But neither of the parties knew their true lines, and no representations were made on either side, and there can be no estoppel.

III. It has been held in many cases that the statute of frauds stood in the way of allowing the title to real estate to be affected by parol evidence at law, in regard to boundaries agreed upon without writing, and that relief could only be granted in a court of equity whenever the circumstances were such as to show actual fraud. (Parker vs. Barker, 2 Met. 421; Marshall vs. Pierce, 12 N. H. 127; The Mayor vs. Bolling, 3 Rand. 563; Denn vs. Baldwin, 1 Zabriskie, 395; Swick vs. Sears, 1 Hill, 18; Delaplaine vs. Hitchcock, 6 Hill, 17; McPherson vs. Walters, 16 Ala. 714; Day vs. Rowland, 17 Id. 681; 18 Id. 182;...