Wilkerson v. Eilers
| Decision Date | 14 February 1893 |
| Parties | Wilkerson v. Eilers, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court -- Hon. James E. Withrow Judge.
Reversed and remanded.
F. & Ed. L. Gottschalk for appellant.
(1) The trustee's deed to Virginia Wilkerson was improperly admitted in evidence. The deed to Wilkerson's trustee required, upon default, the publication of notice of sale to be for thirty days in some newspaper. The deed offered showed the publication was in two papers, but in neither of them for thirty days. Kellogg v. Carrico, 47 Mo. 157. (2) The court refused to admit proper testimony, and to allow defendant to read the depositions of witnesses, Pausch Dobler and Berry. Prewitt v. Martin, 59 Mo. 333; Norris v. Brunswick, 73 Mo. 256; Korte v Hoffmann, 97 Mo. 286; State v. Talbott, 73 Mo. 358; State v. Stein, 97 Mo. 333; State v. Mathews, 98 Mo. 125; State v. West, 95 Mo. 149; Edwards v. Crenshaw, 30 Mo.App. 514. (3) The court erred in refusing defendant's instruction in the nature of a demurrer to the evidence. (4) The only instruction asked by defendant was improperly refused. Huckshorn v. Hartwig, 81 Mo. 651. As to adverse possession see Cole v. Parker, 70 Mo. 373; Hamilton v. West, 63 Mo. 93; Ekey v. Inge, 87 Mo. 493. The modification of this instruction by the court was misleading. (5) The first instruction given for plaintiff is therefore erroneous, as it is predicated upon the weakness of defendant's title alone, and not on the strength of plaintiff's. Suppose plaintiff had no title at all, he would still be entitled to a verdict under this instruction. The plaintiff in ejectment must recover, if at all, on the strength of his own title. Marion v. Elliott, 99 Mo. 622; Duncan v. Able, 99 Mo. 188; Cape Girardeau, etc., v. Renfroe, 58 Mo. 265; Foster v. Evans, 51 Mo. 39; Statute, 1889, sec. 4633; Mather v. Walsh, 107 Mo. 131. It is erroneous, secondly, for the reason that it has the words "claiming to be the owner thereof" interpolated by the court, as in defendant's refused instruction already spoken of. It is erroneous, thirdly, for calling for "good faith" in the taking and holding of the possession by defendant. This part of the requirement only applies to possession with color of title, when the tenant being in the actual possession of a part of the land claims title to the whole in good faith, or to a bona fide entry on public lands.
Campbell & Ryan for respondent.
(1) The advertisement was continuous and for the full period of time required by the deed, and the fact that the "St. Louis Daily Journal" and "St. Louis Times," consolidated under the name "St. Louis Times-Journal," did not affect the notice which began in the "St. Louis Daily Journal;" there was no break in the publication and the same persons received the paper; there was full compliance with the terms of the deed and proper legal notice given. Soule v. Chase, 1 Rob. (N. Y.) 223; Isaacs v. Shattuck, 12 Vert. 668; Reimer v. Newell, 47 Minn. 237; Mitchell v. Nodaway Co., 80 Mo. 257; Bank v. Stumpf, 73 Mo. 311; Kellogg v. Carrico, 47 Mo. 157; Powers v. Kueckhoff, 41 Mo. 425; Duncan v. Matney, 29 Mo. 368; Gray v. Shaw, 14 Mo. 341; Rice v. Brown, 77 Ill. 549; Graham v. Felts, 53 Miss. 307. (2) It was not error in the circumstances of this case to refuse to permit defendant to read the depositions of Pausch, Dobler and Berry. State v. Mathews, 98 Mo. 125; Liggett v. Morgan, 98 Mo. 39; Parsons v. Railroad, 94 Mo. 286; Huhn v. Railroad, 92 Mo. 440 (3) It was not error to give the instruction which assumed plaintiff's title to be good, as (except as to the legal question of the sufficiency of the advertisement) there was no dispute as to the plaintiff's title. Field v. Railroad, 80 Mo. 203; Caldwell v. Stephens, 57 Mo. 589. (4) Mere possession, however long-continued, open and notorious, without a claim of ownership, gives no title; hence the interpolation in defendant's instruction was rightly made by the court and the plaintiff's instructions correctly declared the law applicable to the facts. Mather v. Walsh, 107 Mo. 121; Cook v. Farrah, 105 Mo. 492; Cole v. Parker, 70 Mo. 373; Walbrunn v. Ballen, 68 Mo. 164; Hamilton v. West, 63 Mo. 93; Bradley v. West, 60 Mo. 33; Dolby v. Snuffer, 57 Mo. 294; Davis v. Thompson, 56 Mo. 39; Fugate v. Pierce, 49 Mo. 441; Bowman v. Lee, 48 Mo. 335; Sherin v. Brackett, 36 Minn. 152; Shearer v. Middleton, 88 Mich. 621; Creekman v. Creekman, 75 Va. 430; Angell on Limitations, sec. 384, p. 388, and sec. 390, p. 396. (5) The objection made by appellant to the use of the words "good faith" in the first instruction given for plaintiff is not supported by authority or reason. Bradley v. West, 60 Mo. 33; Tyler on Ejectment, p. 887; Liggett v. Morgan, 98 Mo. 39; Livingston v. Iron Co., 9 Wend. 511; Creekman v. Creekman, 75 Va. 430. (6) The fourth instruction given for plaintiff was applicable to the facts and properly declared the law. Bartlett v. O'Donoughue, 72 Mo. 563; Tyler on Ejectment, 909; Pike v. Robertson, 79 Mo. 615; Musick v. Barney, 49 Mo. 458. "The indications of adverse possession and claim should be so patent that the owner visiting his land could not be deceived." Hence upon the evidence the verdict was manifestly for the right party. Cook v. Farrah, 105 Mo. 492; Pike v. Robertson, 79 Mo. 615; Musick v. Barney, 49 Mo. 458; Draper v. Shoot, 25 Mo. 197; Moore v. Thompson, 69 N.C. 120. "To bar the true owner the adverse possession is presumed to have been known and acquiesced in by him." Musick v. Barney, 49 Mo. 458; Angell on Limitations, sec. 390, p. 399.
An action of ejectment for a small parcel of land in the city of St. Louis, being in the western part of block number 92 of the St. Louis commons, containing about one and three hundredths acres and fronting about four and fifty-seven hundredths chains on the east line of the Stringtown road, now Virginia avenue, by a depth east on its north line of about two and six hundredths chains, and on its south line of about three and fifty-nine hundredths chains. The suit was commenced on the twenty-second day of May, 1890. The answer is a general denial.
The plaintiff is the husband of Virginia Wilkerson. The evidence tended to show title from the government to Bridget Ivory, who on the seventeenth day of November, 1874, executed a deed of trust on the premises to Alfred Carr, as trustee, for the use and benefit of Virginia Wilkerson to secure a loan of a certain amount of money. The deed of trust provided that the land should be advertised for thirty days before the day of sale in some newspaper in the city of St. Louis.
Plaintiff read in evidence over the objections of defendant a trustee's deed from Alfred Carr to Virginia Wilkerson, executed on the seventeenth day of December, 1878, and made under a sale under said deed of trust by Carr as trustee. It appears that the notice of the trustee's sale was advertised in the St. Louis Daily Journal on November fourteenth and fifteenth and in the St. Louis Times-Journal twenty-nine times in addition thereto, making altogether thirty-one times. The Times and Journal were consolidated about the middle of November, 1878, and the next issue thereafter was called the Times-Journal, and there was no lapse between the ceasing of the one and the issuing of the other.
The evidence also tended to show that the defendant had been in the open and adverse possession of the land for more than ten years before the commencement of this suit.
There was a verdict and judgment for plaintiff for possession and defendant brings the case to this court by appeal.
Defendant's first contention is that the court improperly admitted in evidence the trustee's deed to Virginia Wilkerson, because invalid and of no effect, for the reason that the deed of trust under which the sale was made by the trustee Carr provided that the notice of the sale should be published in some newspaper for thirty days before the day of sale, while in fact the notice was published in two different newspapers, two days in one and only twenty-nine in the other, and was not published for the requisite length of time in either paper. The evidence clearly shows that the publication was but the continuation of the one notice, and, although the name of the paper in which the notice was first inserted was changed by reason of its consolidation with another, we can but conclude that the publication of the notice was in strict compliance with the provisions of the deed of trust.
As was said by Judge Redfield in the case of Isaacs v. Shattuck, 12 Vt. 668, where the statute required the publication of an advertisement for the sale for taxes to be published in the "Vermont Republican," and it was published in the "Vermont Republican" and the "American Yeoman," "that the name of the paper being entirely changed if it could be made to appear that it was the same paper required by the statute, the advertisement would be legal." And in the case of Soule v. Chase, 1 Rob. (N.Y.) 223, where the notice of sale was required to be published in the "New York Day Book," and the notice was published in the "Evening Day Book," it was held to be a compliance with the order. To the same effect is the case of Reimer v. Newell, 47 Minn. 237, 49 N.W. 865. We must therefore rule this point against the appellant.
The court permitted plaintiff's counsel on the cross-examination of several of defendant's witnesses to call their attention to statements made by them in their depositions, which had been taken on the fifteenth day of March, 1890, in regard to the matters in issue in this case and to ask them if they had not at that time made certain statements which were in seeming conflict with those made by them on the trial of...
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