Ridgeway v. Holliday

Hough, Judge, delivered the opinion of the court. This was an action of ejectment. It appears that in October or November, 1859, one Halford, step-son of Benjamin F. Toteau who then lived in the State of California, acting under a power of attorney from said Yoteáu which was defectively acknowledged, sold to a man named Bennett, the premises in controversy, received the consideration and put Bennett in possession. No deed was made in consequence of the defect in the acknowledgment of the power of attorney; but Halford promised to send and get a deed from Totean or a formal power of attorney and execute a deed himself, which was never done. Bennett lived on the premises about one year and then sold the same and delivered the possession to the plaintiff, but made no conveyance to him. The plaintiff was present at the sale and delivery of possession to Bennett by Halford. Plaintiff remained in possession by himself and his tenants until the 23rd day of July, 1870. On the 9th day of March, 1870, Yotean brought an action of ejectment in the Circuit Court of the United States for the Eastern District of Missouri against the tenant of the plaintiff Bidgeway, of which action' Bidgeway who then lived in the State of Illinois had no notice, and in which he was not named as a party, and the tenant having made default, judgment was on the 20th day of April, 1870, rendered in favor of Y oteau for the recovery of the possession of said premises, and on the 23rd day of July, 1870, possession of the same was delivered to him by the United States Marshal in — 450 — pursuance of said judgment, and lie remained in possession until the 19th day of September, 1870, when he executed and delivered a .quit-claim deed for the same to the defendant, Holliday, who was in possession by bis tenant, Gentry, at the time of the institution of this suit by Ridgeway in November, 1871, and at the time of the ouster laid in the petition. It was admitted by the parties for the purposes of the trial, that the legal title was in Voteau ou the 4th day of October, 1848. The defendant, Holliday, testified that he knew of tlie suit in the United States' Court by Voteau, for the recovery of the possession of this property and of the result thereof; that he examined Voteau’s title before purchasing and found it to be perfect, so far as the records were concerned. He did not know Ridgeway, and had not heard that he had ever been in possession of the premises, or that he made any claim to tire same. Defendant introduced in evidence a deed dated January 16, 1867, from the collector of St. Louis County to the wife of plaintiff relating to the premises in controversy, from which it appeared that a judgment was rendered in July, 1864, in the County Court of St. Louis Coituty, against this property for the taxes of 1862, the same hwing been assessed to B. F. Voteau for that year, and that in October, 1864, it was sold for said taxes to Charles M. Elleard, who -received a certificate of purchase which he transferred to Mrs. Ridgeway and the collector’s deed was accordingly made to her, but it conveyed only the right, title, interest and estate of the State of Missouri in said premises. The cause was tried by the court without the aid of a jury and the following declaration of law was given at the instance of the plaintiff: " If the court sitting as a jury believe from the evidence, that possession of the premises in question was given under a promise of a conveyance to one Bennett, and that he went into possession claiming title, and that afterwards he sold out to plaiutiif, and that thereupon plaintiff went into possession, and if the court sitting as a jury shall believe that said possession of Bennett joined with the further possession of plaintiff continued for a period of over ten years, and that said possession was notorious, visible and actual for said period, it — 451 — declares the law to be that said possession is adverse, and finds for the plaintiff,” which was excepted to by the defendant. The court refused the following declarations of law asked by the defendant: 1st. If the court, sitting as a jury, believes from the evidence that the records of the county of St. Louis, on the 19th day of September, 1870, showed that the legal title to the premises in controversy was in Benjamin F. Voteau, and had been in the said Voteau as shown by said records, from October 4th, 1848, and that said Voteau was in the peaceable and quiet possession of said premises from the 23rd day of July, 1870, up to the 19th day of September, 1870, and that while so remaining in possession, the said Voteau, by his deed dated September 19,1870, conveyed said premises for a valuable consideration to defendant, Samuel N. Holliday, without notice on the part of said Holliday of the plaintiff’s claim of title, or of the plaintiff having been in possession of said premises and that said Voteau delivered possession of said premises to said Holliday under and in pursuance of said conveyance, on the 19th of September, 1870, and that said Holliday remained in the peaceable possession of said premises from that time until the institution of this suit in November, 1871, then the verdict must be for defendants. 2. The court declares the law to be that one who enters under an agreement to purchase cannot set up the statute of limitations as a bar to an ejectment by the owner, and if the court sitting as a jury, believe from the evidence that Bennett entered into the possession of the premises sued for under an agreement to purchase from Voteau, and that he looked to Voteau for a deed and expected a deed from him, then neither Bennett nor any one claiming under him can set up the possession of Bennett as adverse to Voteau until Bennett asserted a title hostile to Voteau, or did some act showing an intention on his part to claim the property adversely to Voteau. 3. If the court, sitting as a jury, believe from the evidence, that Bennett made an agreement to purchase, with Voteau for the premises in controversy, and that by said agreement Voteau was to make a deed conveying to Bennett the legal — 452 — title to said premises, and that Bennett entered into possession of said premises under said agreement of purchase, looking for and expecting a deed from Voteau conveying the legal title of said premises to him, then neither Bennett nor any one claiming under him can set up the possession of Bennett as adverse to Totean while the said Bennett was looking for and expecting said conveyance from said Voteau. 4. There is no evidence in the cause showing an intention on part of Bennett to hold adversely to Voteau before the date of his sale of the premises to the plaintiff in October or November, 1860. 5. If the court, sitting as a jury, believe from the evidence, that the plaintiff, about the year-, purchased a tax certificate of the premises in controversy in the name of his wife, and on the-day of January, 1864, received a tax deed to said premises in the name of his wife under a sale thereof for the taxes of 1862, that is evidence tending to show an admission on the part of the plaintiff that said premises were not held adversely to Voteau at the time said taxes were assessed. There was a finding and judgment for the plaintiff which was reversed at General Term and plaintiff has appealed to this court. Pretermitting for the present any reference to the instruction in regard to the tax deed, the positions assumed in defendant’s other instructions are: first, that as Bennett entered into possession under an agreement to purchase, and looked to Voteau for a deed, he did not, in consequence of that relation, hold adversely to Votean, and Nidgeway cannot, as against the defendant, tack Bennett’s possession to his own, so as to confer upon himself any rights under the statute of limitations; and second,that being a purchaser of the record title from the owner in peaceable possession of the premises, without any notice of any adverse claim, he cannot be evicted by one who had, previous to such possession and purchase, acquired title by adverse possession. The defendant is in error in supposing the transaction between Bennett and Hal ford to have been an agreement to purchase. It was a sale. Possession was delivered to Bennett and the consideration — 453 — was paid to Halford. Bennett was in a position to demand a conveyance from Voteau, as nothing remained to be done by him. The contract of purchase was executed, as far as he was concerned, and Voteau, though holding the legal title, could, not have evicted him. (Tibeau vs. Tibeau, 19 Mo., 78.) Bennett, therefore, though expecting and having a right to expect a deed from Voteau, held against him and adversely to him. There was no contingency on the occurrence of which he was to surrender the possession to Voteau, and he could not be said to hold under him. This is not the case of a veudee holding under a bond for title or other executory contract of purchase, where some act remains to be performed by the veudee before he can demand the legal title. Bennett’s possession then having been according to the testimony, actual, visible and adverse, the continuity of the united adverse possession of himself and the plaintiff was not broken by the transfer of the premises to plaintiff without deed or other writing. The possession of an adverse occupant need not be transferred by deed. (Menkens vs. Blumenthal, 27 Mo., 203; Crispin vs. Hannavan, 50 Mo., 549.) The adverse possession, of which the plaintiff' had a right to avail himself, it will be seen from the testimony, was more than ten years. This possession would not only bar a recovery by Voteau, but it extinguished his title and conferred it upon the plaintiff. (Crockett vs. Morrison, 11 Mo., 7; Biddle vs. Mellon 13 Mo., 335; Blair vs. McGinniss, 16 Mo., 273; Nelson vs. Brodhack, 44 Mo., 596; Barry vs. Otto, 56 Mo., 177.) There can be no question then, that if Eidgeway had brought his suit against Voteau, after his entry on July 23, 1870, and before he sold and transferred the possession to the defendant, Holliday, he could have recovered. The case of Roberts vs. Sanders, (3 A. K. Marshall, p. 951.) is in so many respects similar to the case at bar, at the present stage of our inquiry, that it will -not be inapt to recite its leading facts. It appears in that case that a patent had been issued by the State of Yirginia to one Griffin, and also to John Donnell and Charles Morgan in 1787, for land upon which one Sanders subsequently entered, under color of right, aud held continuous adverse — 454 — possession thereof, for more than twenty years; and thereafter, and whilst possession was still held by a tenant of Sanders, an ejectment was commenced in the Circnit Court of the United States for the district of Kentucky in favor of one Colston, and notice was served upon the tenant in possession, but without any defense being made, and without any notice to Sanders, the landlord, or his having any knowl edge of the ejectment having been brought, judgment was rendered against the casual ejector by default. Sanders’ tenant was turned out of possession, and the possession was delivered to Colston. From that time until the institution of the suit by Sanders,'the possession continued in Colston and those claiming under him, Sanders sued Roberts and Ralston, tenants in possession, and on motion Colston and Morgan were admitted to defend. What Colston’s right was, does not appear, and it does not appear that there was any privity between Morgan and those in possession. The court say “ without a patent, Sanders may, by his entry, have ousted the patentees, Donnell and Morgan, to whom the Commonwealth had previously granted the land, and by continuing the possession so gained by his entry, claiming title to the boundaries of his survey, the patentees, Donnell and Morgan, could not, after the expiration of twenty years, have legally entered on the land; and any possession which destroys the rights of others, of necessity confers that right upon the possessor. If, therefore, we are correct in supposing Sanders, by his possession, gained a right of entry in the land, it follows that he cannot be prevented from recovering by reason of anything contained either in the patent to Donnell and Morgan, or that to Griffin, or by the recovery of Colston in the Circuit Court of the United States.” It will be seen from this case and .from the case of Biddle vs. Mellon, (13 Mo., 335,) the facts in which latter case are also very much like those in the case at bar, that the plaintiff could have maintained his action against Voteau. But it is contended by the defendant that he is a purchaser for value from Voteau who appeared from the record to be the owner, and was in '.possession, without any notice of the prior adverse possession — 455 — which passed the title to Ridgeway, or of any claim on his part to the premises; and that as against him, the defendant, Ridgeway, cannot assert iris title; that to permit him to do so, would be giving to an adverse possession greater force and efficacy than is given to an unrecorded conveyance. These objections, it must be admitted, are very forcible. ' The registry act, however, cannot, in the nature of’ things, apply to a transfer of the legal title by adverse possession, and such title does not stand on the footing of one acquired and held by an" unrecorded deed, and of such title, the purchaser may not expect to find any evidence in the records. "Whether it is incumbent on the owner, by adverse possession, to perpetuate the evidence of his title by proceeding to remove the cloud thereon, occasioned by the existence of the record title in another, so as to affect subsequent purchasers with notice, it is not necessaiy to inquire. We are relieved of any discussion of this subject, by the character of the conveyance under which defendant claims. It is a qnit-claim deed and will not support his claim of being a purchaser for a valuable consideration without notice. He took under it only what Voteau could lawfully convey, (Oliver vs. Piatt, 3 How. U. S., 333; 3 Wheat., 449; Bogy vs. Slioab, 13 Mo., 380;) and his title having passed to the plaintiff as completely as if be bad transferred it by deed, the defendant, took nothing by liis quit-claim deed from Voteau, and can have no better right to the possession than Voteau had. Besides knowledge that Voteau had recovered possession of the premises in ejectment was sufficient notice of an adverse claim and possession to put the defendant upon inquiry as to the nature of that claim and possession. The first, seeond, third and fourth instructions asked by defendant were rightly refused. In regard to the fifth instruction asked by defendant, we Lave only to say that tbe assessment of tbe lot in tbe name of the record owner is not shown to have been in any way attributable to the plaintiff or to have been made with his knowledge or consent, and after Elleard had bought the property for taxes, he had an undoubted right to protect his possession by discharging that, incumbrance in any way be saw fit. His possession was not in any way affected by this collector’s deed; besides, it only purported to — 456 — convey the right, title and interest of the State of Missouri. (Einstein vs. Gay, 45 Mo., 62.) The instruction given at the instance of tlie plaintiff, though subject perhaps, to some verbal criticism, construed in the light of the facts, is substantially correct, and as the trial was by the court, it is not necessary to comment upon it. All the judges are of opinion that the judgment of the Genera] Term should be reversed, and the judgment of Special Term should be affirmed and judgment will be entered accordingly.