Ozark Plateau Land Co. v. Hays

Barclay, J. This case was tried upon an agreed statement of facts, and now presents, mainly, questions as to the meaning of that statement. It is conceded that plaintiff has the earlier paper title, and that it is entitled to recover, unless the facts stated give defendant a better right. The statement shows defendant’s possession of the disputed land, under color of title, for more than ten years before this action, and that such possession was “uninterrupted, adverse and notorious.” From other parts of the agreed case it is evident that these words were not intended to imply “actual” possession, for further details of evidence are mentioned obviously bearing upon that particular point. Defendant’s claim to actual possession rests upon his having “cut timber on said land, protected the timber from trespassers, and paid taxes on same.” It also appears that defendant has inclosed with a fence a large portion of the land described in the patent (which forms his color of title), but not that part which is now the subject-matter of dispute. Plaintiff urges that the defendant’s patent, covering the debatable tract, cannot be regarded as giving color of title, because it does not affirmatively appear to have been recorded in the local office for the registry of conveyances in the county where the land lies. Color of title need not necessarily consist of recorded instruments. Facts and circumstances, showing sufficient notoriety of claim, and of its nature and extent, may sometimes impart to an unrecorded document the effect of color. But, as the agreed statement concedes that defendant’s claim was “adverse and notorious,” [151] and that it rested upon a patent from the state of Missouri, we think the want of any showing that it was recorded in the county cannot impair the force of the patent, as such color, here. Defendant claims the effect of a perfect title by lapse of time, in the circumstances described. Actual possession for ten years of a part of a tract of land, under color of title and claim to the whole, with the exercise of the usual acts of ownership over the entire tract, will amount to actual possession of the latter, for the purposes of acquiring title under our statute of limitations. R. S. 1889, sec. 6768. But here are two coterminous proprietors, whose respective colors of title, unfortunately, blend. It is our task to discern, in the mixture, that color which is justly entitled to favor in the eye of the law. The plaintiff has title to, and possession of, a large tract of land adjoining that in suit; but, as to the nature of that possession, the agreed case is entirely silent. It is of vital consequence to the rights of these parties what the character of that possession has been during the period, in which the law of limitation would become operative on the title, before the bringing of this action. The rule of law governing this point we may venture to summarize thus : Where the owner of the better legal title is in actual possession of part of the tract covered by his muniment, his legal seizin is regarded as extending to the whole tract; and, as to such owner, a junior paper title of another claimant will have no effect to extend the rights of the latter beyond the bounds of his actual possession under that junior title. Hunnicut v. Peyton (1880), 102 U. S. 333. This rule was declared in this state as early as Cottle v. Sydnor (1847), 10 Mo. 763, but somewhat restricted, if not abandoned, in McDonald v. Schneider (1858), 27 Mo. 405, and Griffith v. Schwenderman (1858), 27 Mo. 412; reasserted in Schultz v. Lindell [152] (1860), 30 Mo. 310; Tayon v. Ladew (1862), 33 Mo. 205, and Crispen v. Hannavan (1872), 50 Mo. 537, and more recently confirmed in Leeper v. Baker (1878), 68 Mo. 400. We need not further review these Missouri cases or mention others that bear upon the point. Our statement of the rule is merely for the purposes of this case, and must be taken in the light of the peculiar showing of facts with which we have to deal. The precedents mentioned clearly indicate that, where the true owner is not in actual possession of any part of the tract, an adverse, actual possession under color of title may be established by another that will cut down the elder title to the extent of such conflicting color, and ultimately create a superior right, by lapse of time, under the provision of our law on the subject of limitation of actions. R. S. 1889, sec. 6768. What acts will characterize possession as “actual,” in the connection in which that word is here used, depends on the facts of particular cases. The nature and location of the property, and all the circumstances, must be considered in determining it, in any given one. In that before us, it is admitted that defendant has had actual possession of a part of the tract covered by his patent for the requisite period of limitation, claiming the land in dispute, which is within the description in that patent. Whether his acts upon the land in suit now claimed by plaintiff should be construed as constituting actual possession by defendant, we need not consider, since his title should obviously prevail as to that land, unless plaintiff’s possession of the adjacent territory mentioned was likewise actual. That, it has not been shown to be. As we have already stated, the agreed facts shed no light on that point whatever. What, then, is the proper disposition to make of the case ? If the party on whom the burden of proof rests submits his cause without evidence, or on evidence insufficient to warrant the affirmative action of the trial [153] court, and the latter thereupon finds for the defendant, the plaintiff, on reaching this court, surely cannot justly claim a reversal and new trial because of the inadequacy or imperfections of the case on which he asked judgment on the circuit. If the original finding were in favor of plaintiff, upon a statement of facts insufficient to sustain that result, this court might properly reverse, and, if thought just, remand the cause for new trial, by virtue of express statutory authority to that effect (R. S. 1889, sec. 2304), as was done, for instance, in Gage v. Gates (1876), 62 Mo. 412. But, on the other hand, this court has power, and has at times exercised it, of directing a different judgment, on an agreed statement, from that pronounced in the trial court, without ordering a new trial. R. S. 1889, sec. 2304; Henry, etc., Co. v. Evans (1889), 97 Mo. 47. Agreed statements of fact are solemn admissions, resembling special verdicts, and (as with the latter) the meaning of the language in which they reach us cannot be enlarged beyond its plain and express scope. Munford v. Wilson (1852), 15 Mo. 540; Henri v. Grand Lodge (1875), 59 Mo. 581. Under the law now governing proceedings in this court, we are not warranted in reversing a judgment, unless we can point out error in the record to the prejudice of appellant, materially affecting the merits of the aolion. R. S. 1889, sec. 2303. On the facts here agreed, plaintiff is not entitled to recover. That the showing on which it submitted the action fails to contain facts enough to warrant a finding for plaintiff cannot justly be regarded as furnishing a sufficient reason to reverse the ruling of the trial judge, entered in favor of defendant, the only correct conclusion that could have been pronounced in the circumstances. The judgment is affirmed; Black and Brace, JJ., concurring. Sherwood, C. J., dissents.