Wilkerson v. Thompson

• Citation: 82 Mo. 317
• Parties: WILKERSON, Appellant, v. THOMPSON.
• Decision Date: 30 April 1884
• Court: United States State Supreme Court of Missouri

82 Mo. 317

WILKERSON, Appellant,

v.THOMPSON.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Putnam Circuit Court.--HON. JOHN W. HENRY, Judge.

REVERSED.

A. W. Mullins for appellant.

C. A. Winslow for respondent.

Neither party having shown a paper or other legal title to the land, and the defendant being admitted to have the prior possession, the right is presumptively with him. Prior possession is evidence of the better right as against a party not showing title, or a right to the possession. Crockett v. Morrison, 11 Mo. 3; Dale v. Faivre, 43 Mo. 556; Bledsoe v. Sims, 53 Mo. 305; Norfleet v. Russell, 64 Mo. 176. The two instructions given for plaintiff, submitted the facts on which he relied in the most favorable light. Plaintiff seeks to recover on the strength of an estoppel in pais; such estoppel will not support ejectment. Allen v. Sales, 56 Mo. 28. The court properly declared the law on the question of limitation. The land being military bounty land, the limitation of two years applies. Forcible entry will not interrupt the statute of limitations. Ferguson v. Bartholomew, 67 Mo. 212.

RAY, J.

This is an action of ejectment for the northeast quarter of section 14, township 58, range 21, in Linn county, Missouri. Suit was commenced in the Linn circuit court on May 12, 1871. The petition is in the usual form. The answer a general denial. A change of venue was afterward awarded to the Putnam circuit court, where the cause was tried by a jury, resulting in a verdict for the defendant, and judgment accordingly, from which the plaintiff has appealed to this court.

On the trial neither plaintiff nor defendant offered any paper title to the land in controversy. The plaintiff, however, in support of the issues on his side, offered evidence tending to show, that, on the 19th of March, 1869, the defendant and his son, Silas F. Thompson, were living together in a cabin, situated on the land in controversy, and surrounded by a field or enclosure of some ten acres, or more, which the son claimed to own. A part of the inclosure seems to have been on the northwest quarter of said section, and the balance with the house on the land in controversy. The plaintiff's evidence further tended to show that the house was first built on the northwest quarter of said section, in 1864 and afterwards, in about 1865 or 1866, moved upon the northeast quarter, or the land in suit; that the defendant thought and claimed, that the house and improvements were situated on the northwest quarter, and some of the witnesses said that neither the defendant or his son Silas ever claimed to own, or possess the northeast quarter, until after this fuss or controversy sprang up. It appears that the wife of defendant died, about 1865, and that the son married about that time and brought his wife there, and that after that they both lived in and occupied the house, and worked upon and cultivated the farm together. It, also, appeared that when the house and inclosure were first built, the line between the northeast quarter and northwest quarter had not been run, and that when the line was afterwards run, it then appeared that the house was near the dividing line but on the northeast quarter with a part of the inclosure, and that the defendant claimed that the surveyor was running the line too far west on him.

On the part of the defendant the evidence tended to show, that the first improvement on the land in controversy was made by the defendant, James N. Thompson, in 1861; that the improvements consisted of a small house, a cabin, with fencing around it, and was claimed and occupied by the defendant; that some five or six acres were fenced in 1865, 1866 or 1867; that the old man built the fence; that he made the rails and has lived there most, if not all, the time since; that the old man first commenced on the land in 1861; that Silas, his son, was a boy and came with his father; that they settled on the northeast quarter first; that he built the house first on his land, and then moved it out; that the old man claimed to own and to be upon the northwest quarter and did not claim to own the northeast quarter; that the old man and Silas cultivated the field in 1869, and planted a crop in the spring of 1870; that Silas married some time about 1862 or 1863; that Silas lived sometimes at home, and sometimes at other places; that the old man kept house for himself, while Silas and his wife were not living with him, and continued to reside at the same place, while Silas and his wife were residing elsewhere; while Silas lived there his wife did the house work and Silas worked on the farm, etc.

The plaintiff was also sworn as a witness in his own behalf and testified as follows: “About the 19th of March, 1869, the day before the lease was made, I went to where this land was and saw Silas F. Thompson, and the defendant here, chopping close to this land, but on the northwest quarter. I asked Silas who the improvements on the northeast quarter belonged to and he said they belonged to him; I then asked him what he would take for the possession and improvements, and he said $200, if I would let him move the cabin off; Silas then said he would see the old man; if he concluded to take the $200, would come to town next day. Silas and I then agreed that I would consult Judge Brownlee, and that he should come to Linneus next day and I would tell him what I would do; Silas came to town next day, and when I saw him he asked me what I had concluded to do, and I told him that we could trade; I gave him my note for $200, due the next Christmas, and he made the first lease; old man Thompson, the defendant, was present during all the talk Silas and I had down where they were chopping; he did not inform or intimate to me that he held or claimed either the possession or improvements; the only thing he said was to Silas, that he had better not trade; he heard all that passed between Silas and me about the matter there. After the note was due and I had paid it, Silas told me that the old man was setting up some claim. I did not know that the defendant made any claim to the possession or improvements. I had bought stock from the place several times, and always traded with Silas, and never heard any objection from the defendant. I never had any conversation with the defendant about it; he was not present when the note was executed or lease taken by Silas.

The plaintiff next offered and read in evidence the following leases, to-wit:

“Know all men by these presents that I, Joel H. Wilkerson, have rented and leased to Silas F. Thompson, the northeast quarter of section fourteen (14), township fifty-eight (58), range twenty-one (21), from this date until the 25th day of December, 1870; said Thompson is to continue in the possession from this date, and is to pay rent at the rate of $5 per annum, and to hold possession of said land to said Wilkerson, to preserve the timber on the land, to cut no timber nor take any off the land, and agrees to give up the possession to said Wilkerson at any time he may demand the same, during the said time herein described, reserving the part on which any crop may be growing until the end of the term and to give possession of all the land at the end of his time without notice. Signed this 21st day of April, 1870.

SILAS F. THOMPSON, [SEAL.]

Know all men by these presents that I, Joel H. Wilkerson, have rented and leased to Silas Thompson the northeast quarter of section fourteen (14), in township fifty-eight (58), in range twenty-one (21), for the term of one year from the date of this lease; said Thompson is to have possession immediately, and is to pay rent for the use of the same at the rate of $5 per annum; said Thompson agrees to hold possession of said land to said Wilkerson, to preserve the timber on the land, to cut no timber nor take any off the land, agrees to give up the possession to said Wilkerson at any time he may demand the same during the said time herein leased, reserving the part on which any crop may be growing until the end of the year, and to give full possession of all the land at the end of the year without notice. Signed this 20th of March, 1869.

SILAS F. THOMPSON.”

By agreement between the undersigned the within lease is hereby extended for the term of thirty (30) days, March 21st, 1870.

J. H. WILKERSON,

SILAS F. THOMPSON.

The plaintiff also introduced A. D. Christy, who testified as follows, to-wit:

“Was present when the line between the northwest quarter and the northeast quarter, 14, 58, 21, was run, surveyed in 1866 or 1867; the defendant was present and said the corner between the two tracts of land was too far south. Wilkerson paid me $200 on a note given by him to Silas F. Thompson; the note was paid about the 25th of December, 1869.”

On cross-examination the said witness stated: “Three or four acres of the improvement by that survey were on the northeast quarter, 14, 58 21, and the house in which the Thompsons resided was on the northeast quarter, and part of three strings of fence enclosing in part the three or four acres.”

The defendant was also sworn as a witness in his own behalf, and testified as follows, to-wit: “Know this land since 1860; took possession of both quarters in 1860. In 1869 I had ten acres improved. I built on the northeast quarter first in 1860; moved the house in July, 1866, further out on the same quarter; I remained on the land since I first built there; Wilkerson came to Silas and myself when we were at work. Wilkerson, Silas, what do you say to signing a lease to the land inside the field; said he would put $5 in the lease, but did not care whether it was paid or not. I asked Wilkerson if he had the old patent on the land, and he said yes, and pulled out a paper which was bogus. I know a good title when I see it; President Monroe never signed that paper. I then said to Silas, ‘keep your hands out of it, sir.’ The improvements on the land were worth $400 or $500 when Silas traded with...