Peterson v. Laik

Scott, Judge, delivered the opinion of the court. Under the circumstances of the case, the instruction given by the court as a substitute for that offered by the plaintiff was erroneous. As the defendant in her answer under oath denies the right of the plaintiffs to the premises, they, for the purposes of the suit, could not be regarded as co-tenants. The instruction gave the defendant all the benefit of an actual co-tenancy in making her defence, while at the same time she holds the plaintiffs at arm’s length, and denies that they have any title. The law of ouster in an action of ejectment between co-tenants, wherein the one denies that the other ever had any title to the disputed premises, must be the same as in an action between those who are connected by no such relation. If the defendant wanted the benefit of the facts assumed in the instruction, why in her answer did she not disclaim to hold adversely to the plaintiffs ? She would in one breath deny that the plaintiffs were her co-tenants, and in the other claim the benefit of the relation. Where one co-tenant seeks to bar [544] another on the ground o£ adverse possession, the law requires proof of unequivocal acts showing an actual ouster. So where the title of the plaintiff as a co-tenant is not disputed by the defendant, and the case turns on the fact whether there has been a disseizin of one co-tenant by another, the plaintiff must show an actual ouster, or that some act was done by the defendant amounting to a total denial of the right of the plaintiff as a co-tenant. But in an action wherein the co- tenancy is denied ever to have existed, there is no reason why stronger evidence of an ouster should be required of one claiming as co-tenant than any other party. In such case the 11th section of the act ^concerning ejectment has no application. By filing such an ■answer as was put in in this case, an act was done which showed that the defendant made a total denial of the right of the plaintiffs as co-tenants. There was error in submitting to the jury the construction of the deeds read in evidence. Whether the deeds amounted to a disaffirmance of the act done by those who executed them while they were infants was a question of law for the determination of the court. That a deed executed by one who has attained his majority, conveying lands, which he had alienated during his infancy, is a disaffirmance of the deed of alienation made during his infancy, is the well-settled doctrine of this court. The acquiescence of the infant, after his reaching his full age, for a period short of that which would secure a title by the statutes of limitations, does not destroy or take away the right which the law for wise purposes has conferred on infants of disaffirming their deeds. Whether the infant may not after attaining full age, within a shorter time, by bis declarations, acts or conduct, restrain himself from a disaffirmance of his acts done during infancy, is a question not presented by any thing contained in this record. In the case before us, we are of the opinion that the deeds, executed by the infants after they attained their majority and relied on by the plaintiffs, amounted to a disaffirmance of the deeds made for the same land during their infancy. (Youse v. Norcoms, 12 Mo. 549; Norcum v. [545] Gaty, 19 Mo. 65; Tucker et al. v. Moreland, 10 Pet. 72; Carpenter v. Jackson, 11 Johns. 539; Jackson v. Burchin, 14 Johns. 124.) Judge Ryland concurring, the judgment is reversed and the cause remanded ; Judge Leonard absent.