Mather v. Walsh

Barclay, J. This is an action of ejectment for a parcel of land to which both parties claim, title under the statute of limitations. The result of the litigation in the trial court was in favor of defendants. The points urged by plaintiff, as grounds for a reversal, will be taken up in their order. Error is assigned upon the refusal to grant the plaintiff’s requests for instructions, numbered 15, 16, 17, 18, 19 and 20. I. The last will be first considered because it is framed as a demurrer to the evidence, and, if correct, would dispose of the whole controversy. The defense to the action was adverse possession of such a nature as to confer title under the limitation la-y. In that connection it appeared that the lot in dispute formed part of certain inclosed premises in Kansas City, and that defendants had an undoubtedly good title (as against plaintiff) to the greater part of the inclosure, by virtue of a purchase thereof at a sale under a mortgage executed by plaintiff’s predecessor in title. But the mortgage did not embrace the particular piece which forms the subject-matter of this action. That piece, however, was contiguous to the mortgaged property, and, with the latter, was taken possession of by the purchaser at the foreclosure sale, to whose rights the defendants are the successors. For some time thereafter, it would appear, no special notice was taken by anyone of the variation between the possession and the ostensible paper title of the defendants ; but it is plain that, between 1874 and 1876, certainly not later than 1876, the defendants Maloney took steps which would clearly justify the inference and finding that they intended to claim all the land within the inclosure (including the [130] now disputed grounds), adversely, and in every other manner necessary to assert full ownership thereto. They had held actual possession since July 24,1874, under a deed, describing only the mortgaged property. In 1876 Mr. Maloney returned from a trip to California and discovered that his wife had been paying some special tax bills assessed against lot 27 as well as against the other lots (28, 29 and 30) in Peery Place. He got his deed, examined it, and found that lot 27 was not included in it. He then at once paid all back taxes upon lot 27 and the other lots, obtained a certificate of the purchase of the property for said delinquent taxes, August 18, 1876, and since then there can be no doubt that the claim of exclusive ownership has been steadily and continuously asserted by the Maloneys, and their possession maintained (either by themselves or tenants). In November, 1877, they received a tax deed, based on the certificáte of purchase in 1876, and_ have paid all kinds of taxes since, as well as for several years before that date. They moved upon the property in 1876, repaired the fences of the inclosure, including the piece in controversy, which was at first used as a' garden or open yard; in connection with the house on the adjacent lot. Latterly the disputed ground has been improved by the erection of a substantial building. The present action was begun, October 28, 1887. We think *this meager outline of defendants’ case will show that there is substantial evidence upon which the court might properly submit the issue of defendants’ title by adverse possession, as it did by the instruction given as number 1. II. But plaintiff then complains of the refusal of his request, numbered 15. It contains at least one error that can be seen at a glance. The fact that a proprietor of land has taken possession (under a deed) of more land than its description calls for will not prevent his asserting, later, an adverse possession of, or title to, the excess beyond his paper [131] title. Though his original taking may have been the outgrowth of mistake, or in ignorance of the true line, he may, notwithstanding, afterwards begin an adverse holding which the law will recognize when sufficiently long continued. Handlan v. McManus (1889), 100 Mo. 124. The facts in evidence here illustrate such line of action, and the plaintiff’s refused instruction was not in harmony with the law as just stated. III. The refusal of request, numbered 16, was not error. One of its vices is that it would authorize a finding for plaintiff, if defendants’ alleged title by possession failed, without requiring a finding on the facts relied upon by plaintiff to show title in himself. Plaintiff’s right of recovery on his evidence was in issue and disputed, and this instruction ignored that view of the case entirely. A plaintiff in ejectment must ultimately recover, if at all, on the strength of his own title. Another weakness in it is its use of the words “against all the world.” The assertion of adverse title against the plaintiff in the action is sufficient. It is not necessary that it should be “against all the world.” Clemens v. Runckel (1863), 34 Mo. 41; Pease v. Lawson (1862), 33 Mo. 35. In so far as this request called for a description of the nature of defendants’ possession, essential to bring the statute of limitations into play in their favor, it was given in the first instruction for defendants. IV. The refusal, of plaintiff’s request, numbered 17, is next complained of. The purchase of a tax title to land is not an admission by the purchaser of prior title in another. A direct purchase of any ostensible title, by one in possession, has no such force as an admission. A party in possession of land may fortify his right thereto by acquiring any outstanding interest therein, without thereby weakening the force or effect of his possession. This is too well settled in this state to require further comment now. Macklot v. Dubreuil [132] (1845), 9 Mo. 477; Mattison v. Ausmus (1872), 50 Mo. 551; Funkhouser v. Lay (1883), 78 Mo. 458. Y. Plaintiff also objects to the refusal of his eighteenth request. It is scarcely necessary to remark on this point. The fact that “there was no more visible use and occupation of .the disputed land, after the Maloneys claimed it, than there was while plaintiff had prior possession of it, can have no decisive bearing on the rights of these parties. The date when the possession of the Maloneys began to run, under the limitation law, did not depend on whether there was any visible change in the use or occupation of the lot by them, but upon other considerations noted elsewhere in this opinion. YI. The nineteenth request was correctly refused, because “color” is not necessary to originate title under the statute of limitations of Missouri. A claim of title to the land, with actual, adverse possession thereof (of the requisite character), during the period prescribed by the statute, will vest the possessor with title without any paper support thereto whatever. This is no longer a debatable question, and calls for no more than this brief statement. The evidence tended to show an actual possession by defendants of the lot in suit, not a mere constructive possession. The inclosure or yard, appurtenant-to the dwelling, and used by defendants in connection therewith, was as much in their actual possession as the house itself in the circumstances here exhibited. The foregoing are all the assignments of error that appear to require comment. The judgment is affirmed, all the judges of this division concurring.