McDonald v. Schneider

Scott, Judge, delivered the opinion of the coiirt. We do not see the force of the objections to the deed of of lease made by the trustees of the town of St. Charles to Wardlaw. It is under the seal of the corporation. The common seal is proved. It is also shown that it was affixed by the clerk of the board of trustees, who was authorized thereunto by ordinance. The attesting clause is nearly in the language required by law. (Angell & Ames, § 225.) The town of St. Charles was incorporated by an order of the county court of the county of St. Charles in 1830, in pursuance to the provisions of the act of the legislature approved January 26th, 1825. Under this act, and the act of December 22d, 1824, concerning commons, it was supposed that the town had authority to lease her commons, and she did actually lease portions of them. Being in the exercise of this right, when the act of 28th December, 1832, respecting the commons of St. Charles, and the act of 27th January, 1837, incorporating the town, were passed, the two first sections of the former and the 9th section of the latter of these acts must be regarded as a recognition of the validity of the powers previously exercised in relation to the commons. But where is the utility of such an objection, as the town recognizes the validity of the leases she has granted ? At most, it could only render a change in the style of the suit necessary. St. Charles could sue in her own name. Those going in under void leases would be regarded as tenants at will. Their occupation or possession would enure to the benefit of the town on a question as to the propriety of the application of the statute of limitations. (Murray v. Armstrong, 11 Mo. 209.) [410] We are told that as early as the time of Lord Coke an attempt by a corporation to set aside a grant for a misnomer was severely censured. The act under which St. Charles was incorporated required that the town incorporated should be a body politic and corporate by the name and style of “ The inhabitants of the town of-,” naming the town to which the charter was granted. The lease is in the name of the trustees of the town of St. Charles, a misnomer which the officer very naturally made ; as it will be seen, from the act in relation to towns and the several acts before referred to, that, when any thing is to be done, the statute requires that .the trustees should do it. The rule with regard to the misnomer of individuals does not apply to corporations. The trustees were the recognized agents of the inhabitants. To them was confided all the police power of the body politic. When they acted as such, it must have been for the inhabitants of the town. The transposition or omission of some of the words of the name of a corporation or the interpolation of others does not necessarily make a difference in their sense. (10 N. H. 123; 32 Eng. Law & Eq. 589; Angell & Ames on Corp. § 99.) The second and two last instructions given for the defendant were erroneous, under the facts of the case. The deed to Bradley was upwards of twenty years old. There had been no possession under it for more than twenty years by Bradley or those claiming under him. It is a well established principle that an outstanding title in a third person, set up as a bar to a recovery in an action of ejectment, must be such a one as the owner of that title himself could recover on if he were asserting it in an action. It must be a present, subsisting and operative title. Now it is obvious that the title of Bradley, set up in this action, was not such a one. Prima facie, he could not have maintained a suit upon it. Why then should a stranger be permitted to use it as a defence in an action of ejectment ? There were no circumstances in evidence which relieved it from the objections with which it was encountered. (Jackson v. Hudson, 3 John. [411] 375; Greenleaf’s Lessee v. Birth, 6 Pet. 302; Peck v. Carmichael, 9 Yerg. 325.) Moreover, there were facts from which a jury might have found a surrender or reconveyance of the demised premises. The fact that the deed of Bradley was in the hands of the grantor, his long continued absence and silence, the little value of the lease at the time, were circumstances of sufficient weight to have warranted such a verdict. Deeds may be presumed from length of time alone, nothing counteracting such a presumption. (1 Cow. & H. Notes, p. 355.) Although it is a rule that he who is in possession of a part' of a tract of land, having title thereto, is adjudged by the law to be in the possession of the whole of it; and, although it is a rule that where possesssion is mixed, or where two persons possess adjoining tracts and their possession conflicts or interferes the one with the other, the legal possession is adjudged to be in him who has the better title — for, as both can not be seized, the possession follows the title — yet if ho who has the inferior title enters upon the interference and actually occupies it adversely to him who has the better title for a sufficient length of time, he will acquire a title against the true owner by limitation as to the portion actually occupied, although the true owner may be in the actual possession of that portion of his tract which is not covered by the interference. (Barr v. Gratz, 4 Wheat. 213; Hall v. Powell, 4 Serg. & R. 456; Angell on Limitations, 432, 442; McGowan v. Crooks, 5 Dana, 65; Burns v. Smith, 2 Serg. & R. 436.) Had the case of Altemus v. Long, 4 Barr, 254, intended to overturn all the previous cases on the subject, they would certainly have been referred to. The case in Barr seems to turn on the effect of an entry at common law by the true owner on one not having a title. So the rule that possession of part is possession of the whole, is only applicable where there is no actual adverse occupancy. If the defendant was in the actual adverse occupancy of any portion of the interference for a length of time sufficient to bar the plaintiff’s action, he can not now be evicted by [412] him. But in such case he can only defend for the portion which he shows he has actually occupied for twenty years. The rule that possession of part, claiming the whole, under a color of title, is possession of the whole, can not avail him, as the plaintiff, having the legal title to the whole, is deemed to be in possession of the whole, and the defendant can only prescribe for that part which he shows to have been actually occupied for twenty years adversely to -the plaintiff. The burden is on him and he is confined to his actual adverse possession, which must have been enjoyed for a time sufficient to create a bar of the plaintiff’s right. The plaintiff’s claim consists of a portion of the commons of St. Charles, which were confirmed by the act of 13th June, 1812. The defendant’s title is a subsequent entry with the United States register and receiver and a patent thereon. The confirmation being the elder title, its superiority is admitted by the defendant. The other judges concurring, the judgment will be reversed and the cause remanded.