Warfield v. Lindell

Holmes, Judge, delivered the opinion of the court. The questions presented for decision arise mainly upon the instructions which were given or refused. 1 But, as it often happens in cases like this, the determination of these depends as much, or more, upon the application of the law to the facts of the case than upon settling the principles of law, as such. It becomes necessary, therefore, in the first instance, to examine into the nature of the evidence, that we may gain a clear and definite conception of what the case made really was upon which the instructions were predicated. The defence was made to rest, in part, upon the assumed ground of an actual entry, by the defendant, into possession of the lots in controversy, by virtue of some exclusive claim of right or title anterior in date to the deed or deeds which made him a tenant in common with those under whom the plaintiffs claim. We find no evidence in the record which can be said to have any tendency to support this position. On the contrary, the evidence clearly shows that the first possession taken by the defendant of these lots was of a date — 578 — subsequent to his deed from Smith’s heirs, conveying to him an undivided interest of one-third in the property. By later deeds he acquired another one-third interest in the same, while he was himself in possession. The law presumes in such case-that he entered into possession under his title, and his possession must be regarded as that of his co-tenants also—Parker v. Proprietors, &c., 3 Met. 91. It was not shown that he had any other title, nor that he owned more than the interest of two-thirds acquired by these deeds at any time during his possession. It is distinctly proven that after he had acquired the interest of Smith’s heirs, he employed a surveyor to go with the plat and survey the lots, and ascertain precisely where they were, and that his actual possession commenced after the survey was made. It appears also that at the time of this purchase and taking possession there was a building on the premises, which had been used for a steam mill by a man that had failed and gone off; that there had previously been an auction sale of lots in the addition, and that these lots among others had been marked “ sold ” on the plat, but that they had never been paid for nor conveyed, and had reverted to the original owners ; but there was no evidence whatever to show that there had been any connection between the defendant and the former owner of the mill, nor that he had acquired any title or possession from him. The necessary inference from the facts proved must be that the defendant entered into possession under his deed, and by virtue of the title thereby acquired. His possession, therefore, began as that of one tenant in common holding with others under the common title, and all question of an adverse possession of the whole property commencing anterior to this title, or independently of it, is thus removed from our consideration. Another position of the defendant was that upon an exclusive possession of the whole property extending beyond the full period of the statute of limitations, a deed should be pre sumed. That may doubtless be done in a proper case, but there is no ground here for a presumption of that kind. The — 579 — case involves not merely an adverse possession in general, but the particular question of an actual ouster, by one tenant in common of bis co-tenants. If such an adverse possession only were the subject of inquiry, and if it were established by the evidence, there would be no need of presuming a deed at all; such adverse possession would by itself alone be evidence of an estate in fee, and equivalent to an absolute title. But if this presumption of a deed conveying the whole title be insisted upon as the basis of a seizin or possession anterior to his title as a tenant in common, or of a possession taken independently of the tenancy in common, and against the legal presumption of such tenancy, we do not think it can in any manner be admitted.. There was no evidence on which this theory could be maintained. The remaining defence rested upon the question of an actual ouster of the co-tenants, followed by an adverse possession for the whole period of the statute of limitations. The state of the evidence upon this matter was such as to present two distinct bases on which instructions might properly have been given to the jury. The first consisted in open, visible and notorious acts of exclusive ownership and actual ouster, which were in themselves of such a nature as to rebut and overcome the legal presumption of a tenancy in common, and to give notice or impart information of such actual ouster, and constitute in law competent evidence from which a jury might be warranted in finding the fact of an actual ouster more than twenty years before suit. The second basis consisted in the mere fact of an exclusive and undisturbed possession of the whole premises, taking the entire profits and paying all the taxes for a period extending beyond the statute of limitations, with the acquiescence of the co-ten-auts, and without any claim of possession, right or title on their part, or any demand for an account of the profits, together with all other circumstances bearing upon the conduct of the parties, and upon the character and intent of the possession, as furnishing altogether competent evidence and a basis of facts proved, in which the court would be justified — 580 — iu leaving it to the jury to infer and presume an actual ouster, if morally convinced that such had been the fact. Under this first head, the acts proved, which were of such a nature as to afford direct evidence of an actual ouster, and were therefore competent to be submitted to the jury on that question, consisted chiefly, if not entirely, in the occupation and use of the premises for the purpose of quarrying rock. The use made of the old mill building, or the leasing of a small part of the premises, was not inconsistent with the presumed possession of one tenant in common on behalf of all. But an extensive quarrying of rock during nearly the whole period of this entire possession, digging deep holes in the ground, and removing large masses of the soil and rock, was an invasion of the realty itself, and amounted to waste, for which the co-tenants might have maintained an action of trespass against him, and therefore to acts of actual ouster. It amounted to ouster, because it was a destruction or taking away of the thing itself—Wilkinson v. Haygarth, 11 Jur. 104; 2 Crui. Dig. by Greenl. 391, § 10, n. 1. There was ample evidence that large quantities of rock had been quarried and carried away from the premises, amounting to thousands of dollars in value; that small houses, or shanties,-had been erected for the use of the workmen, and that these acts were overt and notorious, and they were unquestionably of such a character as to impart information and give notice to the co-tenants that their rights in the premises were invaded and denied, and that a possession was claimed and a use made of the property which was utterly inconsistent with the presumption that the defendant’s possession was their possession also, and consequently that the unity of possession was dissolved. Upon such evidence as this we think a jury might be well warranted in finding that there had been an actual ouster; but it is a matter of fact for the jury to determine. The difference in the rule of evidence as applicable to a case of this kind and to a case of adverse possession, a dis-seizin in general, depends upon the presumption of law that — 581 — the possession of one tenant in common is the possession of the co-tenants as well. The very essence of a tenancy in common consists in the unity of possession. It is the only unity required of tenants in common, and they hol'd by unity of possession—2 Greenl. Crui. Dig. 390, tit. 20, § 2; 4 Kent. Com. 367. That one tenant in common may disseize another there can be no doubt; but in consequence of the legal presumption, acts of exclusivo possession, which, .in case of a stranger, would be deemed adverse and per se a disseizin, are in cases of tenancies in common susceptible of explanation consistently with the real title : they are not necessarily inconsistent with the unity of possession existing in such case. It is for this reason that it depends upon the intent with which the acts of ownership are done, and upon their notoriety and essential character, whether they will be such as to break and dissolve the unity of possession, constitute an adverse possession as against the co-tenants, and amount to a disseizin. For this purpose, there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such .a nature as by their own import to impart information and give notice to the co-tenants that an adverse possession and an actual disseizin are intended to be asserted against them—Prescott v. Nevers, 4 Mason, 326 ; Parker v. Proprietors, 3 Met. 91; Jackson v. Tibbits, 9 Cow. 241 ; Ricard v. Williams, 7 Wheat. 121; Lodge v. Patterson, 3 Watts, 77 ; Ang Lim. 464, § 14. The other evidence had no tendency to prove direct acts of actual ouster. It consisted merely of facts and circumstances going to show negligence, inattention, remissness and failure to claim any right or title, or make any demand for an account of the profits — mere acquiescence on the one side, and a continuous and exclusive possession of the whole premises on the other — taking all the profits and paying the taxes for more than twenty-six years, and for a time beyond the full period of the statute of limitations, both as a bar to an ejectment and a bar to an action of account. Upon evidence — 582 — of this kind, it would have been entirely proper for the court to instruct the jury that they were at liberty to presume— that is, to infer — an actual ouster, if upon the whole evidence before them considered together, with the great lapse of time, they should be morally convinced and satisfied that such had been the fact. Such evidence in such case may be allowed to overcome the legal presumption in favor of a tenancy in common, and it will be deemed sufficient in law to warrant a jury in inferring and presuming an actual ouster and an adverse possession for the period of the statute bar; and the jury is not bound to find, nor should the court instruct them to find, such actual ouster; the doctrine goes no further than to leave it to the jury, not upon a legal presumption, but upon a natural presumption, passing for what it may be worth with them, and operating upon the minds as it may happen to produce an actual conviction of the fact—Bolton v. Hamilton, 2 Watts & S. 294 ; Law v. Patterson, 1 Watts & S. 193 ; 3 Watts, 165 ; Ang. Lim. 467, § 14; Doe v. Prosser, Cowp. 217 ; Hornblower v. Read, 1 East. 568 ; 2 Greenl. Crui. Dig. 395-7. Much stress has been laid upon the effect of the partition record against the plaintiffs. The exclusion of this record would seem to have been at least one of the reasons why the judgment was reversed on the former occasion. It was not then said, nor do we now think that this partition, or the deeds made in confirmation of it, were evidence of any direct repudiation of all right or title in these lots ; but it was said that this record was admissible in evidence as going tG show remissness or negligence in not asserting any claim of right or title, and as showing facts which might form “ a good ground for presuming a deed after the lapse of twenty-six years, and a continuous possession in the defendant during this period.” We have already seen that the evidence produced here laid no foundation for the presumption of a deed; but we think it may be correctly said that the evidence was admissible for what it was worth, as going to show remiss — 583 — ness in search, and negligence and failure to claim any right at that time, together with the other facts and circumstances, and the lapse of more than the full period of the statute of limitations, forming a proper ground on which it might be left to the jury to infer and presume an actual ouster. Nor do we think it furnished any proof, either by way of an admission in the petition, or by virtue of any effect of the partition itself, that the plaintiffs had then no right or title in these premises. Only so many lots and parcels were then divided in partition as were then made the subject of partition. No fair inference could be drawn from this transaction, either that the parties repudiated any ownership in these lots, which were not then made the subject of partition, or even that they were omitted through ignorance or neglect. The most that can be said is that it was a circumstance, among others, which might properly go to the jury for what it was worth, as showing acquiescence merely. On the other hand, the answer of the defendant in the ejectment suit of Lisa v. Lindell had no tendency to prove an admission that he held ás a tenant in common with the plaintiffs. The whole answer was to be taken together, and it distinctly placed the defence on the ground of an independent and exclusive claim of possession and ownership adverse to the title of the plaintiff therein. It merely said in one part, that as against her suit he woirld show that the right and title which she'claimed had been conveyed by her to another person. If that would be a bar to her recovery, it would be enough for his purpose; if not, he still stood upon his claim of title and adverse possession, whatever it might be. It had no proper tendency to prove that he was not claiming an exclusive adverse possession in the premises, even as against co-tenants ; nor did it amount to any positive admission of a co-tenancy. It certainly had no effect to prove or disprove any direct act of actual ouster; but the answer, like the petition of the partition, was evidence of what it contained, and the record of the proceedings may be — 584 — considered as admissible, like the partition record, for what it was worth as a part of the facts and circumstances, on which the jury might be left to infer and presume an actual ouster, or the contrary; and it might have some bearing upon the character and intent of the possession which he was then claiming. Such being the nature of the evidence before the jury, the instructions are to be considered as predicated upon this state of the case. The principal objection to the instructions which were given for the plaintiffs points to the matter of knowledge or notice of acts of ouster. The evidence did not show that actual knowledge of any acts of ouster had been' brought home to. the plaintiffs or those under whom they claimed ; but there was evidence tending to prove such overt and notorious acts of exclusive possession and ownership of the whole property as must, by their very nature and character, be deemed and taken in contemplation of law as amounting to an actual ouster, and as giving notice even to tenants in common, whether present or absent, of an intention to hold and assert an exclusive adverse possession against them, and, therefore, of an actual ouster. It belonged to the jury to weigh the force and determine the effect of this evidence, and to decide the question of an actual ouster in fact, involving the act, the intent, and the notice. These instructions for the plaintiffs appear to be the same as those which were the subject of consideration when the case was here before—Warfield v. Lindell, 30 Mo. 272. The particular objection rests upon the words (in one clause) “ until some notorious act of ouster or adverse possession is brought home to the knowledge or notice of the plaintiffs.” And (in another clause) — “and that the acts and the intents were brought home to the knowledge of the plaintiffs.” The direct and plain purport of this language is to require actual knowledge, or actual notice, to be brought home to the persons. All idea of constructive notice would seem to be clearly excluded. It was expressly declared, in the form — 585 — er decision in this court, that where there was evidence of such overt and notorious acts of exclusive adverse possession and entire ownership of sucli a nature that the law will presume them to be notice by persons of ordinary diligence in attending to their own interests — or, in other words, are of such a character as of themselves to impart information and give notice of such adverse possession and ownership even to tenants in common — proof of actual knowledge, or positive notice, was unnecessary and should not be required; and it was said that “ if the co-tenant is ignorant of his rights, or neglects them, he must bear the consequences.” The distinction between actual and constructive notice in these cases was thus distinctly pointed out. It is true, the words “ brought home to the knowledge or notice of the others” are used by Mr. Justice Story in Clymer v. Dawkins, 3 How. U. S. 689; but it is sufficiently clear from the rest of the opinion that he contemplated not only actual knowledge or notice, but constructive notice also, consisting in overt and notorious acts of ouster, or an assertion of claim to the exclusive possession and the entirety of the whole land “ which, in contemplation of law, is known to the other tenants.” The same purport is implied in the words of Marshall, O. J., in McClung v. Ross, 5 Wheat. 124, that “a silent possession, accompanied with no act which can amount to an ouster, or give notice to his co-tenant that his possession is adverse, ought not, we think, to be construed into an adverse possession.” It is here supposed that acts of ouster may be such as to amount to notice, and in contemplation of law to give notice whether actual knowledge of them be brought home to the co-tenants or not. Such acts are “ constructive notice of a claim adverse ” to the other tenants in common, and such notorious adverse possession is considered to be “ constructive ouster.”—Parker v. Locks & Canals, &c., 3 Met. 191. It is said in Lodge v. Patterson, 3 Watts, 77, that “there must be a hostile intent, and that intent must be manifested by outward acts of an unequivocal — 586 — kind”; but that “to constitute a disseizin, it was never held to be requisite that notice should be sent to the disseizee, or that it must be proved he had knowledge of the entry and ouster committed on his land.” Other cases are entirely consistent with this distinction : Law v. Patterson, 1 Watts & S. 184; Prescott v. Nevers, 4 Mas. 330. Where the acts are inconsistent with the presumption of a tenancy in common, the intent may be found from the overt acts proved in the case—2 Greenl. Crui. Dig. 393, p. 3. But a mere verbal declaration made to some third person would not be such an overt and notorious act, nor would such act of itself impart notice. On this matter of knowledge or notice we think the instructions given for the plaintiffs were clearly erroneous. Nor do wc find that any other instruction was given which could have the effect to cure this error, or guard the jury against a misconception of the law on this vital point. The instruction which was given for the defendants also required actual knowledge to be brought home to the co-tenants. We do not well see how the sixth instruction refused for the defendants, on this subject of knowledge or notice, could have been refused, even on the theory adopted by the court in the plaintiffs’ instructions, unless it were deemed unnecessary, after the jury had already been instructed on that point, that it required actual knowledge; and we think that constructive notice, consisting in a notorious adverse possession, accompanied with unequivocal acts of exclusive ownership, would have been sufficient. It is not considered worth while to examine in detail the numerous instructions which were refused for the defendants. They do not appear to have been framed with any distinct reference to the different modes of proving an actual ouster, which we have indicated above; and many of them lay undue stress upon particular facts and parts of the evidence. Hardly one of them can be said to be entirely free from objection. We shall not undertake further to point out the specific defects. By the light of the principles above laid — 587 — down, and with reference to the views expressed concerning the tendency and effect of the different kinds of evidence, counsel will be enabled to frame other instructions which may be better adapted to the nature of the case made before the jury. Judgment reversed, and the cause remanded. The other judges concur.