Chandler v. Neighbors

Smith, J. This was ejectment to recover a strip of fifteen or twenty acres in the western part of north half of southeast quarter of section 6, township 5 south, range 19 west. The plaintiff showed a prima facie title in himself to the whole tract of eighty acres, of which this strip was a part. The defendant, who was the owner of the adjoining tract on the west, relied upon adverse possession of the land in controversy, continued for such a length of time as to confer a title under the statutes of limitation. To sustain this plea, he introduced the patent deed made by the United States, in the year 1857, to Smith Sullivan, for the southwest quarter of said section, and proved that in the same year the deputy county surveyor of the county had run the line between the two quarters, locating this land west of the line; and it was claimed that subsequent proprietors of both tracts had acquiesced in this survey, and had occupied and improved with reference to the supposed line. And the Circuit Court instructed the jury that, if they found these facts to be true, their verdict should be for the defendant. But the difficulty on this point is, that when the survey of 1857 was made, the east half of section 6 belonged to the General Government, not having been patented until 1859. And there was no proof that the original patentee, or any one holding under him, had ever assented to the line then traced as the correct boundary. The improvements upon the land in dispute were made by one Holstein, after his purchase of the southwest quarter, in the year 1872. But at that time two of the three owners of the land adjoining on the east were infants. One of these became of age in March, 1880, less than three years before the commencement of this action. And another was still younger. Consequently the verdict, which was favorable to the defendant, was to this extent without evidence to support it. The proper construction of section 4113 of Gantt’s Digest is, that when seven years have elapsed since the cause of action accrued, and three of those years have been free from disability, the right of entry or of action is tolled. Jackson v. Johnson, 5 Cowen, 74; Willson v. Betts, 4 Denio, 201; Gray v. Yates, 67 Mo., 601. Reversed and remanded for a new trial.