Turner v. Baker

• Decision Date: 31 October 1867
• Parties: HENRY S. TURNER, Respondent, v. LEVIN H. BAKER, Appellant.
• Court: Missouri Supreme Court

42 Mo. 13

HENRY S. TURNER, Respondent,

v.LEVIN H. BAKER, Appellant.

Supreme Court of Missouri.

October Term, 1867.

Appeal from the Circuit Court of St. Louis County.

The evidence in this case is very voluminous, embracing a long period of years. But as the decision of the case turns simply upon the action of the court below in giving and refusing instructions in reference to the statutory ten years' limitation of real actions, it is useless to state the facts further than they appear in the opinion of the court. Arguments of counsel are also voluminous, but bear almost wholly upon alleged acts of estoppel in pais, which are directly denied in the opinion of the court.Gantt, Glover & Shepley, for respondent.

Hill & Jewett, for appellant.

HOLMES, Judge, delivered the opinion of the court.

After some study of the whole case, we have come to the conclusion that its determination, as presented on this record, must depend entirely upon the action of the court below in giving and refusing instructions in reference to the ten years' limitation. We shall, therefore, not undertake to review the facts any further than it may be necessary for the purpose of showing the bearing of the points raised and now decided under the statute of limitations.

The suit was an ejectment, commenced on the 11th day of January, 1865. The plaintiff was unable to show any title by deed to any part of the land sued for. His claim of title rested wholly upon an alleged estoppel in pais. It is unnecessary to detail the circumstances. It was founded upon acts of ownership and possession of the land, with the acquiescence of the true owner, for a number of years less than the period of the statute bar. This possession, as well as that of the adjoining proprietor on either side, was taken and held under a sheer mistake of the true lines of their respective tracts; and it had wholly ceased somewhere between the years 1842 and 1845. In 1828-9 the ancestors of the defendant had built a fence on what they appear to have supposed to be their western line. About the same time the adjoining proprietor on the west of this possession of the plaintiff's ancestor had erected a fence on what he supposed to be his eastern line. The plaintiff's ancestor supposed his land to lie between them. All parties continued under this mistake until 1845, when the true locations or boundaries were ascertained by accurate survey, made at the instance of the defendant's ancestor. None of them had previously taken the pains to ascertain the true lines by survey. It would appear that the plaintiff's ancestors had knowledge of the correct survey in time to have instituted suit against the adjoining proprietor on the west of them, for the possession of the land which really belonged to them, before the statute of limitations had become a complete bar; but no suit was instituted. But soon after the discovery of the mistake, the defendant's ancestors set up their claim to the whole land belonging to them by deed, and, on the 12th day of August, 1845, certain intruders, claiming by a title adverse to both of these parties, having entered and taken actual possession of a larger tract, including these premises, and held the possession adversely against them both, the defendant's ancestors instituted legal proceedings in unlawful detainer against them, and recovered judgment, and were formally put in possession by the sheriff, under a writ of possession, on the 22d of October, 1852. The plaintiff's ancestors made no effort to recover the possession thus lost, though it appears that, in 1856, a tenant of theirs had unlawfully entered upon the possession so held by the other party, and asserted an adverse possession, until he was dispossessed by an action of unlawful detainer at the suit of the other. The defendant and those under whom he claims have held the actual possession in conformity with their title by deed ever since 1852, more than ten years before the commencement of this suit. This may be taken as a brief abstract of the facts material to be noticed here.

A proper instruction was given for the defendant, to the effect that such ten years' adverse possession was a bar to the action; but the jury found a verdict for the plaintiff. If this had been all, it would be difficult to comprehend the verdict; for the evidence appears to have been clear and uncontradicted that such adverse possession had existed ever since 1852.

An explanation of the matter may be found in the instructions which were given for the plaintiff. The first one embodied the facts which the evidence was supposed to prove in relation to the matter of an estoppel ...