Rozier v. Johnson

Bates, Judge, delivered the opinion of the court. This case was before this court once before, by the style of [332] Rozier v. Griffith, and tbe decision is reported in 31 Mo. 171. After the case was remanded, the defendant having intermarried with George B. Johnson, he became a defendant, and with his wife answered the petition. Upon the issues made by the petition and answer, the base was tried by the Circuit Court and a decision made, “ that the defendants’ possession was adverse to that of any co-tenant and amounted to an ouster, and that plaintiff had no claim in equity -to share the benefits of the compromise made with the town of St. Charles; and that on account of said ouster and adverse possession, that plaintiff was not entitled to partition of any part of said land,” and thereupon the court gave judgment for the defendants, and the plaintiff appealed to this court. The petition states that the parties are tenants in common of a tract of land, and that the defendant had purchased an outstanding title to a part of the land, and ask judgment for partition for the benefit of the purchase' of the outstanding title and for an account of rents, profits, &c. The defendant denied the co-tenancy, set up adverse possession, &o. The evidence showed'that the land was confirmed to Francis Duquette ; that it was sold by Duquette’s administrator to John McKniglit and Thomas Brady, on the 29th of April, 1817 ; that McKnight’s interest was sold under execution against him to A. L. Magenis and Daniel Griffith, on the 22d of November, 1825, and Magenis conveyed his interest to Griffith on the 26th of November, 1825 ; that Griffith died in 1844, leaving a widow andTtwo children, one of whom is the defendant Eliza; and that in 1852, by partition among the heirs of Griffith, the tract of land in question was assigned to Eliza; that on May 30th, 1846, Brady’s administrator sold his interest in the tract of land to John O’Fallon, who sold the same to the plaintiff on June 28, 1859. In stating these transfers no attention is paid to the objections made to several of the deeds and no opinion is given as to the effect of them, but for the present purpose they are assumed to be effectual to convey the interests they profess [333] to convey in tbe land in question. It appears ‘also that a portion of the tract was overlapped by tbe commons of tlie town of St. Charles, and that suit was brought by the town for the possession of that part, which suit was compromised by the defendant Eliza (by her guardian ) and the title of the town to that part conveyed to said Eliza on the 3d day of November, 1857. The town’s title was the better title, and that purchase is the one, the benefit of which the plaintiff seeks. In 1835, Griffith bought a tax bill to the tract for the taxes of the year 1833, which were assessed to Duquette, who had then long been dead, and from that time (1835) Griffith and his representatives continued to pay the taxes upon the land which were assessed to him, and after his death to his representatives. Prior to 1850 there was no actual possession of the land, and no acts of ownership exercised over it by the predecessors of the defendant other than the payment of taxes, verbal claim of title, and the appointment of agents to protect it from trespassers. In 1850, the widow of Daniel Griffith took possession of the tract by enclosing and cultivating a portion of it, and that possession was continued by the defendant after the land was assigned to her in the suit in partition, down to the present time. No direct notice was ever given the plaintiff or his predecessors in title, that the defendant or her predecessors held adversely to him or them. The representatives of Daniel Griffith after his death, probably in ignorance of the real state of their title, claimed the entire ownership of the whole tract, and in all their actings, including the controversy and compromise with the town of St. Charles, assumed that they were the sole owners of the tract and recognized no co-tenancy with any other person. During all this time the plaintiff and his predecessors in title do not appear to have exercised any acts of ownership over the land, or to have asserted any claim to the possession of it down to the time of the bringing of this suit in 1859. It is always difficult in cases of this character, to determ [334] ine what facts amount to an ouster. Yet in this case it appears that the exclusiveness of the possession of the defendant was open and notorious, and therefore it cannot be held that the Circuit Court erred in declaring that the possession of the defendant amounted to an ouster. In the case of Warfield v. Lindell, 30 Mo. 272, this subject was fully discussed, and, upon the principles stated in the opinion delivered in that case, the decision of the Circuit Court in this case can be sustained. There being an ouster prior to the purchase from the town of St. Charles, the plaintiff is not entitled to the benefit of that purchase, nor to partition, before regaining possession. The deed of 1835, from the Auditor of Public Accounts for the tax title, was admitted in evidence only as one means of showing the character of the subsequent possession; and for that purpose it was immaterial that no title may have been acquired thereby; and for the specific purpose for which it was offered it was admissible, notwithstanding that the purchase by one co-tenant of an outstanding encumbrance generally enures to the benefit of his co-tenants. Alone, it would not show that the subsequent possession was adverse, but it was a circumstance proper to be considered with others in determining the character of the possession. The judgment of the Circuit Court is affirmed. Judges Bay and Dryden concur.