Bushey v. Glenn

Sherwood, P. J. Ejectment for the south half of the southwest quarter of section 26, township 58, range 21. The title emanated from the government by patent issued to Lewallen, May 5, 1819, based upon a warrant for military services rendered prior to that time. This being the case, and as the cause of action, the adverse possession of the land, occurred after August 1, 1866, it is beyond question that the provision in the General Statutes, page 745, section 1, does not apply, and that the two years’ statute of limitations relating to military bounty lands does apply. Neilson v. Chariton Co., 60 Mo. 386. ‘ The plaintiff tried his cause on the theory that the ten years’ statute governed ; but this was a mistake, and, as the single instruction which he asked embraced this theory, it was properly rejected as an entirety, saying nothing of other matters which it contained. II. Various errors, besides the refusal of the plaintiff’s instruction, are assigned; but it is unnecessary to notice them, as the evidence is undisputed that the defendant had been in the open and notorious adverse possession of the premises, having fenced in the entire premises, leased them for one year, and pastured his cattle there, after his purchase from Graham, and maintained such possession for over two years before action brought against him. These facts gave him a good title against the word, regardless of whether he [334] had a good paper title or color of title or not. This was the view taken by the trial court in the fourth instruction given at the instance of the defendant, in whose favor the jury returned, a verdist. III. Some errors crept into other instructions given at the instance of the defendant, but as they ■are wholly unconnected with, and cannot countervail the undisputed fact of, the defendant’s adverse and ■exclusive possession of the land in controversy for over two years next before suit brought, it is not necessary to notice them further. The only material issue was the adverse possession of the defendant for two years, and about this there is no question. The only verdict the jury could properly render was the one they did render ; and when this is the case, no reversible error has been committed. Fitzgerald v. Barker, 96 Mo. 661; Keen v. Schnedler, 92 Mo. 516; Otto v. Bent, 48 Mo. 23. The judgment -should be affirmed. All concur.