Warfield v. Lindell

• Decision Date: 31 March 1860
• Citation: 30 Mo. 272
• Parties: WARFIELD et al., Respondents, v. LINDELL, Appellant.
• Court: Missouri Supreme Court

30 Mo. 272

WARFIELD et al., Respondents,

v.LINDELL, Appellant.

Supreme Court of Missouri.

March Term, 1860.

1. The character of a disseisin as between tenants in common is different from that of a disseisin as against strangers. This distinction is founded on the presumption that a person, who enters into possession of a tract of land having a title thereto, enters in conformity thereto; prima facie the entry of one tenant in common is not adverse to his co-tenants, but in support of the common title; his possession and seisin are the possession and seisin of his co-tenants.

2. One tenant in common may disseise or oust his co-tenants. To constitute an adverse possession by one tenant in common as against his co-tenants, an actual ouster, or “turning out by the heels,” is not necessary; there must, however, be some notorious and unequivocal act asserting an entire ownership.

3. Whether this assertion of an entire ownership must be brought home to the actual knowledge of the co-tenants depends upon the character of such act of assertion. If it be a verbal assertion or declaration of entire ownership, it can be of no avail to establish an adverse possession unless brought home to the knowledge of the co-tenants.

4. When, however, the act asserting an entire ownership is of such a nature as the law will presume to be noticed by persons of ordinary diligence in attending to their own interests, and of such an unequivocal character as not to be easily misunderstood, it does not devolve upon the possessor to show that actual notice was given to the co-tenant or to prove a probable actual knowledge on his part; it is sufficient if the act is overt and notorious; if, in such case, the co-tenant is ignorant of his rights, or neglects them, he must bear the consequences.

5. A possession of land by a tenant in common for twenty-six years, and an exclusive receipt by him of the rents and profits, without any account rendered or any demand made, would not of themselves raise a legal presumption of ouster by such tenant in common of his co-tenants.

6. The solemn declarations made by a party to a suit in his petition or answer, are, if pertinent, admissible in evidence against him in behalf of persons not parties to the suit, not by way of estoppel, but by way of admission.

Appeal from St. Louis Land Court.

This was an action in the nature of an action of ejectment brought by the plaintiffs as heirs of Nathaniel A. Ware, deceased, on the 14th of January, 1857, to recover possession of an undivided third part of lots numbered 5, 6, 7 and 8, being block No. 225 in the city of St. Louis, containing two hundred and forty feet front on Lewis street and running back to the Mississippi river. Plaintiffs claim title as follows: Smith, Bates and Lisa, in 1817, laid out an addition to the city of St. Louis. Manuel Lisa died in the year 1822. Under a judgment against the executors of Lisa, his interest, an undivided one-third, in all the lots in said addition “which were not sold by said Manuel Lisa,” was levied upon by the sheriff and sold and conveyed to Oliver N. Bostwick. The sheriff's deed is dated May 19, 1826. The case of Lisa v. Lindell, 21 Mo. 128, decides that this sale vested the title to the unsold lots in the purchaser. This title passed by mesne conveyances to Nathaniel A. Ware, ancestor of plaintiffs. The title of Ware was acquired by him in 1833.

The defendants, as the evidence showed, passed title to two undivided third parts of said block by virtue of various deeds conveying to him the interests of Bates and Smith-These deeds were executed previous to 1834, some previous to 1830.

The defendant in his answer, besides a general denial of the allegations of the petition, and a setting up of the statute of limitations, alleged, in substance, the following facts: That on the 27th of July, 1836, Nathaniel A. Ware, the heirs of Bates, and John Smith, filed their petition for partition against W. Smith and D. Smith, the other heirs of William Smith, setting up that they were tenants in common with the defendants of certain lots in Smith, Bates and Lisa's addition, describing them, being unsold lots in Smith, Bates and Lisa's addition; that the said Ware owned an undivided third thereof under Manuel Lisa, and the heirs of Bates one-third, and the heirs of Smith one-third; and praying partition; that a judgment was had on the 5th of August, 1836, and commissioners appointed, who made partition of certain lots between the parties and recommended others to be sold; that the said commissioners returned a plat with these proceedings, upon which certain lots, including the lots now in controversy, were marked “sold;” that after the report of the commissioners had been approved, said Ware ratified and confirmed the said partition and allotment by a deed dated June 15, 1841, to Mary Lisa. The said answer of defendant also contained the following averments: “That the defendant has been in the actual, open, notorious and continued possession of said lots 5, 6, 7 and 8 for more than twenty-nine years, claiming the same in his own right, to the exclusion of all other persons, and with the full knowledge of said Bostwick, and of said Ware, who have all along during said period acquiesced in the said adverse claim of right; and the defendant avers, that from the said long adverse possession and claim of title and the recitals in said proceedings in partition, and in said deeds from Ware to Lisa, the jury may be authorized, if in their opinion they deem it proper, to presume a deed from the said Manuel Lisa to this defendant, or to some person through whom this defendant claims.”

These portions of the answer were stricken out on motion of the plaintiffs. The defendant offered in evidence the record of the partition proceedings mentioned above. The court excluded it. The court also excluded two deeds between said Ware and Mary Lisa, widow and devisee of Manuel Lisa, one dated June 15, 1841, the other dated June 11, 1846.

The plaintiffs read in evidence the answer of the defendant Lindell in the case of Lisa v. Lindell. This answer was filed in the year 1854. In it the defendant stated as follows: “Defendant will insist and show on the trial and against the claim of plaintiff, Lisa, a title in Nathaniel Ware to the premises claimed by the plaintiff by virtue of sale under judgment and execution against the executors of Manuel Lisa.”

The court, at the instance of the plaintiffs, gave the following instructions: “I. If Lisa, Smith and Bates, being co-tenants and owners in fee simple of the tract of land mentioned in the sheriff's deed to Oliver N. Bostwick, read in evidence by plaintiffs, some time in or about the year 1817, laid out said tract into an addition to St. Louis, as mentioned in said deed, and said track and said addition were well known at the time of the levy and sale by the description given in the sheriff's advertisement or deed, (no plat of said addition having been filed for record up to the time of the execution of said deed,) and if the land in dispute is within said addition, then said deed was effectual to pass to the purchaser, Bostwick, all the interest of said Lisa remaining unsold therein.

That the interest conveyed is in express terms restricted to that actually owned or retained by Lisa at the time of his death, without any other or more special designation of the particular lots intended to be sold, can not operate to render the deed void for uncertainty.

The defendant sets up as a defence, and alleges against the plaintiffs' right to recover, an adverse possession of the whole of said premises described in said petition for a sufficient length of time to make the statute of limitations operate as a bar to this action. In regard to this branch of the defence, the court instructs the jury as follows:

In law, Lindell's possession either by himself or his lessee, is deemed to be also that of the plaintiffs, until some notorious act of ouster or adverse possession is brought home to the knowledge or notice of the plaintiffs, or those under whom plaintiffs derive title; merely proving that he has been in possession of the whole premises, and has received all the rents thereof, does not establish an adverse possession.

Whether such acts of ownership amounted to an adverse possession depends on the existence of an intent on his part to oust the said plaintiffs or those under whom said plaintiffs claim from the premises, and their knowledge of their having been done with that intent.

If Lindell claimed the whole premises under a conveyance or conveyances purporting to convey the whole, or the interest therein now sued for in this action, his possession of the whole was adverse to the plaintiffs, and those under whom they derive title, from its commencement under said claim.

If his claim of adverse possession is not based on such a conveyance, but on possession and acts of ownership done by him, then he must prove that such acts were done with the intent to oust the plaintiffs, and those under whom they derive title, from the premises, and that the acts and intents were brought home to the knowledge of said plaintiffs, or those under whom they claim title; and it is only from the time of such knowledge that said acts of ownership are to be regarded as adverse.

In order, therefore, to enable the defendants to avail themselves of the statue of limitations as a bar to this action, the jury must be satisfied from the evidence that for twenty years next prior to the commencement of this suit said Lindell was, without interruption or intermission, in possession of the premises sued for, and that his possession during the whole of that time was adverse to the plaintiffs and those under whom plaintiffs claim title, either because held under a conveyance purporting to convey the title to the whole, or of the interest therein, now sued for in this action, or because, during all that time, he notoriously and to the knowledge of plainti...