Warfield v. Lindell

• Citation: 38 Mo. 561
• Parties: ELISHA WARFIELD et als., Respondents, v. PETER LINDELL et als., Appellants.
• Decision Date: 31 October 1866
• Court: Missouri Supreme Court

38 Mo. 561

ELISHA WARFIELD et als., Respondents,

v.PETER LINDELL et als., Appellants.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Land Court.

Plaintiffs sued defendants in ejectment for lots 5, 6, 7 and 8 in Bates, Smith & Lisa's addition to St. Louis, as laid out in 1817. The facts of the case were the same as at a former trial--30 Mo. 272. In addition to all the facts stated in that report, the following new evidence was given:

Record in partition in suit of N. A. Ware (under whom Warfield, the plaintiff claims) against the heirs of Smith and Bates, filed July 27, 1836, in which petition Ware admits of record the sale of lots 5, 6, 7 and 8, now sued for, to have been made in the lifetime of Smith, Bates and Lisa, or as early as 1822; and the same report concerning these lots 5, 6, 7 and 8 was made on the 28th day of November, 1836, by the commissioners in said petition, of whom Peter Lindell was one.

Deeds passed between N. A. Ware and Mary Lisa, executrix of Manuel Lisa, dated the 15th June, 1841, and 11th June, 1846, confirming said partition in all respects, and stating that said confirmation was made to quiet title to Lisa's interest to said addition.

It was also shown that one Whiting built a mill on the property in suit about forty-six years ago; that Peter Lindell succeeded to this possession of Whiting sometime between 1826 and 1831; that Lindell took possession of the mill, sold off the machinery, used the mill as a warehouse, built a number of houses on the lots, quarried and dressed rock on the place, and held in person and by his tenants notorious and actual possession of the lots 5, 6, 7 and 8, from 1826 to 1831, down to the commencement of this suit. Lindell quarried rock to a large amount from 1832 to 1857, and took all the profits.

Martin Thomas, through whom plaintiff and Ware both claim all the interest the plaintiff now sets up, held the title of Lisa's vendee at the sheriff's sale to all the unsold lots in said addition from October 1, 1828, until April 16, 1831. Ware acquired the same title in 1833, and held it until his death in 1850 or 1851.

The following instructions were given for plaintiffs:

1. 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, sometime in or about the year 1817, laid out said tract into an addition to St. Louis as mentioned in said deed, and said tract 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 and retained by Lisa at the time of his death, without any other or more special designation of the particular lots intended to be sold, cannot operate to render the deed void for uncertainty.

2. The defendants set up as a defense, and allege against the plaintiff's 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:

1. In law, Lindell's possession (either by himself or his lessees) 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 of itself establish an adverse possession.

2. 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 the said plaintiffs claim, from the premises, and their knowledge of said acts having been done with that intent.

3. If Lindell claims the whole premises under a conveyance or conveyances purporting to convey the whole of the interest 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 such 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 intent 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 statute 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 this 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 of the interest therein now sued for in this action, or because during all that time he notoriously, and to the knowledge of plaintiffs or those under whom plaintiffs derive title, claimed the whole adversely to and exclusive of them.

To the giving of which instructions the defendants excepted.

The defendants asked and the court gave the following instructions:

1. If the jury find from the evidence that Peter Lindell, in person, or by his tenants, agents or employees, entered upon the premises in question in 1830 or 1831, claiming the whole of said premises as his own, to the exclusion of all other persons, and to the exclusion of and adverse to Martin Thomas, and that Martin Thomas knew of the said possession of said Lindell claiming as aforesaid adversely to him; and if said Lindell has had and held open, notorious, continuous and adverse possession of said premises, from either of said periods, in person, or by his tenants or agents, until the commencement of this suit, claiming to own the whole of said premises in his own right, to the exclusion of all other persons, then the jury will find for the defendants.

The defendants then asked, and the court refused to give, the following instructions:

2. If the jury find from the evidence that the sheriff's sale to Bostwick was intended to sell and convey only the unsold lots in Bates, Smith & Lisa's addition; that the said Bostwick and his grantees Munson, Thomas, Ingram and Ware, or either of them, never claimed any interest in lots five, six, seven and eight, now in controversy; and if the jury further find that said Ware admitted in his petition for partition of 1836 that the said lots 5, 6, 7 and 8 had been sold by Bates, Smith & Lisa in their lifetime, and if the said Ware in his lifetime never entered upon or made any claim upon the land to the premises in question; and if the said Lindell entered upon the premises in question in 1830 or 1831, claiming the whole of said premises as his own, to the exclusion of all other persons, and has had and held open, notorious, continuous and adverse possession of said premises, from either of said years, in person or by his tenants or agents, until the commencement of this suit, claiming to own the same in his own right, and using the same for his own exclusive benefit, to the exclusion of all other persons, then the jury will find for the defendants.

3. If the jury find from the evidence that the sheriff's sale to Bostwick sold, and was intended to sell and convey, only the unsold lots of Manuel Lisa in Bates, Smith & Lisa's addition; that the said Bostwick and his grantees Munson, Thomas, Ingram and Ware, or either of them, never claimed any interest in lots 5, 6, 7 and 8, now in controversy; and if the jury further find that said Ware admitted in his petition for partition of 1830 that the said lots 5, 6, 7 and 8 had been sold by Bates, Smith & Lisa in their lifetime, and if the plaintiffs have not shown by evidence to the satisfaction of the jury that either Bostwick, Munson, Thomas or his grantees, or Ingram, or Ware, in their lifetime, ever entered upon or made any claim upon the land, or of Peter Lindell, or his agents or tenants, to the premises in question; and if the jury should further find from all the facts and circumstances of this case that either Thomas or any other person through whom plaintiffs claim title, had knowledge of the possession of Peter Lindell prior to the first day of January, 1837, as an adverse possession to him or them; and if the jury further find that, from all the facts and circumstances in this cause, the said Lindell has held the premises in question for more than twenty years before the commencement of this suit, claiming the same as his own adversely to Ware and all other persons, then the jury will find for the defendants.

4. The sheriff's deed to Bostwick conveyed to said Bostwick only the unsold lots in Bates, Smith & Lisa's addition; and if the jury find from the evidence that the said Bostwick and his grantees Munson, Thomas, Ingram and Ware, or either of them, never claimed any interest in lots five, six, seven and eight, now in controversy, during their lives, on the ground, or of the defendant; and if the jury further find that said Ware, in July, 1836, admitted in his petition for partition that the said lots 5, 6, 7 and 8 had been sold by said Bates, Smith & Lisa in their lifetime, and if neither the said...