Zeitinger v. Hackworth

• Decision Date: 06 November 1893
• Parties: ZEITINGER v. HACKWORTH et al.
• Court: Missouri Supreme Court

23 S.W. 763

117 Mo. 505

ZEITINGER v. HACKWORTH et al.

Supreme Court of Missouri, Division No. 1.

November 6, 1893.

TRESPASS — TITLE TO MAINTAIN — ADVERSE POSSESSION.

When plaintiff, holding under color of title, fails to prove adverse possession for the statutory period either before or after an interval during which the land was entirely unoccupied, though his possession was adverse both before and after said interval, his title to maintain trespass fails.

Appeal from circuit court, Wayne county; John L. Thomas, Judge.

Trespass by Anthony F. Zeitinger against John J. Hackworth and David J. Allen. Judgment for plaintiff. Defendants appeal. Reversed.

C. D. Yancey, for appellants. Raney & Carty, for respondent.

BLACK, C. J.

This was an action of trespass for entering upon the W. ½ of the S. W. ¼ of section 5, township 29, range 4 in Wayne county, and carrying away timber trees alleged to be of the value of $600. The jury found for plaintiff in the sum of $10, and the defendants appealed. The case turned upon the question of title. The plaintiff put in evidence a tax deed from the register of lands to Joel D. Lewis, dated in December, 1863. The court held this deed to be void as a conveyance, but good as color of title, so the plaintiff's title depends upon the question whether he and those under whom he claims have acquired title by 10 years' adverse possession. The real question in the case is whether the demurrer to the plaintiff's evidence should have been sustained. As the demurrer was interposed and overruled at the close of plaintiff's evidence, and the defendants thereafter introduced their evidence, we must consider the demurrer in the light of all the evidence in the case. Besides the deed before mentioned, the plaintiff put in evidence the following deeds, which are in due form, and properly described the land: Joel Lewis to John Kerr, dated August 2, 1869; John Kerr to John Long, dated October 5, 1869; John Long to Joseph Raney, dated January 12, 1877; Joseph Raney to James McAllister, dated February 10, 1879; James McAllister to Joseph Raney, dated February 6, 1880; Joseph Raney to Frank Raney, dated 23d March, 1882; Frank Raney to Anthony Zeitinger, dated January 16, 1883; and Anthony Zeitinger to Anthony F. Zeitinger, the plaintiff, dated 12th December, 1887. Joseph Long, who received the deed from Kerr, dated 5th October, 1869, testified that he moved upon the land in that year, cleared seven or eight acres, built a cabin, and...