Crispen v. Hannavan , 50 Mo. 536 ( 1872 )

Bliss, Judge,

delivered the opinion of the court.

The plaintiff claims possession of the land in controversy by virtue of title acquired under the statute of limitations, and while it is .conceded that only a portion of the 160 acres claimed was inclosed and under actual cultivation, yet as the several deeds under which the plaintiff and his grantors entered embrace the whole quarter-section, he claims that his and their possession covered by construction all the land so embraced in said deeds, although they may have failed to convey the legal title.

Ordinarily, the possession of one who does not hold the true title can extend only to the land in actual occupancy. The owner, who holds constructive possession of all lands not actually occupied by others, cannot be disseized by a mere claim. There must be something more. In addition to the actual occupancy of a part — the^open, notorious and continuous possession.as owner — there must be a claim to the whole, by the same right under which the part actually occupied is held, and such claim must be bona fide and evidenced by some paper or proceeding, or relation, that makes the claimant the apparent owner of the whole. (Fugate v. Pierce, 49 Mo. 441.) Thus is fixed the extent and boundary of his possession, and he is said to hold under color, or semblance or appearance of title. The paper relied upon as giving color of title is ordinarily a defective conveyance, either because the grantor had not the true title, or from some defect in the instrument, and the person who enters under it is presumed to enter adversely according to his apparent title. But not only must the entry. ap.d„occupation be open, notorious, etc., but the true owner must have actual or constructive notice of the paper under which he enters, and thus be advised not only of the actual possession,..which is so open as to be known of all men, but also of its constructive extent^ and boundary, which can be known only by the paper.

Judge Scott, in Griffiths v. Schwenderman, 27 Mo. 412, denies that there can be any-constructive possession as against the true owner, and avers that such possession operates only against those who have no title. This view, held also in McDonald v. Schneider, id. 405; is a mistaken one as given, and can apply only to cases of mixed possession, where both actually occupy a part, claiming the whole, by adverse titles. In that case the true title will prevail against the one merely colorable, and the adverse claimant will be confined to the portion actually occupied; and so with interfering or lapping surveys. (Cheney v. Ringold, 2 Harr. & J. 87; Burns v. Swift, 2 Serg. & R. 436; Ang. Lim., 5th ed., p. 413.)

In the case at bar the defendant denies that the plaintiff and his grantors have held under color, and hence claim that if he can hold at all,he cannot recover the full quarter-section.

It appears that in 1836 Thomas Arnold owned and occupied land adjoining the tract in dispute, and purchased the latter of one John Curll, who conveyed the same by regular deed, which was duly recorded. He entered upon the land and made a small improvement, and in 1838 conveyed his whole farm, including this land, to Hugh Standly. In 1840 the latter conveyed to George Ashby, and in 1841 the said Ashby conveyed back to “Hugh Standly, deceased, his heirs or legal representatives,” Standly having in the meantime died. Ashby was. a brother-in-law of deceased, and never had possession; but Standly had, before his death, extended the improvement upon the disputed land; and his family continued to occupy the farm until its sale by the administrator. In 1844 the administrator of Standly, under an order of court, sold and conveyed the farm to George Norvill; and this deed of conveyance, when offered in evidence as giving color of title, was objected to because the title was in Standly’s heirs, and the administrator had no authority to sell. The objection was, however, overruled, the deed was admitted, and in the subsequent instructions to the jury was held to be sufficient to give color of title to Norvill, and connect him and his possession with Standly and his grantors.

In making this objection counsel seem to confound color of title with title itself. The latter could not pass by the proceeding in question, but it purported to convey the interest of Standly’s estate. The strict legal title, or the interest Standly had acquired by the conveyances before spoken of, may have still remained in the heirs, and yet there was an appearance or color of transfer. All the parties supposed that the administrator’s sale and deed had that effect, and if the transfer was not colorable it would be difficult to hold anything such that did not convey a legal interest. Washburn (p. 139, vol. 3, 3d ed.) quotes approvingly a definition given in Brooks v. Bruyn, 35 Ill. 394, in which the court said that “ any instrument having a grantor and a grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance, gives color of title to the lands described,” and it is held that, to give color, a written instrument or judgment is not necessary.

One who entered upon a specific tract of land which had been surveyed and marked out by public authority, so that its boundaries were well known by the name of the tract and number of the survey, and who improved a considerable portion of the same, claiming the whole as his own and exercising acts of ownership over the whole, and who thus occupied for over twenty years, was held to have disseized the true owner, to have been in under color of title to the whole survey, and to be entitled to protection as owner of the land not under actual cultivation as well as the other. (McCall v. Neely, 3 Watts, 69.) Judge Gibson, in noting the fact that the defendant had no deed or paper title, says: “The words ‘ color of title ’ do not necessarily import the accompaniment of the usual documentary evidences ; for, though one entering by a title depending on a void deed would certainly be in by color of title, it would be strange if another, entering under an erroneous belief that he is the legitimate heir of the person last seized, should be deemed otherwise; and it would be stranger still if his alienee were deemed to have more color of title than he had himself. To give color of title, therefore, would seem not to require the aid of a written conveyance or a recovery by process and judgment, for the latter would require it to be the better title. I would say that an entry is by color of title when it is made under a bona fide and not pretended claim to a title existing in another.” This eminent judge acknowledges the difficulty of giving a proper definition to the term “ color of title,” and the one attempted by him must be construed by the facts then under consideration. It is not likely that he would have held that a claimant merely to a legal subdivision of land under our ordinary Congressional surveys, who should occupy only a part, would have color of title to the whole, although his claim maybe bona fide. The different mode of issuing the patents, with their special surveys, the possession and claim of the occupant, so referring to the patent and special survey as to indicate the boundary of his claim, the fact that with the knowledge of its holder he had for more than the statutory period exercised acts of ownership over the whole by continuously paying taxes and otherwise, would distinguish it from the case at bar, had there been no instrument or proceeding to indicate the extent of the occupant’s claim. (See Judge Scott’s comment on this case in St. Louis v. Gorman, 29 Mo. 598.)

The Supreme Court of Indiana, in Bell v. Longworth, 6 Ind. 273, denies the necessity of a conveyance to give color, and, after giving the general doctrine limiting the possession of an intruder, says: “But where a party is in possession under and pursuant to a state of facts which of themselves show the character and extent of his entry and claim, the case is entirely different; and such facts, whatever they may be in a given case, perform sufficiently the office of color of title. They evidence the character of the entry and extent of the claim, and no colorable title does more.”

In Vancleave v. Milliken, 13 Ind. 105, the above doctrine was affirmed, and a judicial proceeding and sale was held to give color, although void as against the owners of the property.

I have noted a few of the cases upon the subject, which abound in the books, to show how remote from the true title may be that which is merely colorable, or that which has the semblance of one. The transfer from Standly to Norvill is an apparent one, although the right of the heirs might intervene if we were tracing the true title. We are referred to decisions inconsistent with this view, but we deem it more in harmony with the' modern doctrine and with the true policy of the State.

Norvill took the possession theretofore held by Standly and his family, and the same year sold and conveyed the premises by deed, without seal, to Charles W. Hunton. Under our view of what may give color, the admission of this defective instrument in evidence was not erroneous.

In 1858 the Circuit Court of Carroll county rendered a decree against Hunton’s administrator and others, at the suit of one Shannon, who claimed to have purchased said property at administrator’s sale, which decree affirmed the title in said Shannon. This decree, duly recorded, was offered in evidence and received against defendant’s objection ; also a deed from the administrator of Shannon to Love and Sears, given under an order of sale by the County Court of Carroll county, together with a deed from Shannon’s widow. From Love and Sears the title came to the plaintiff in 1863, through several conveyances not in themselves objected to.

All these sales and purchases must be considered colorable. There were grantors and grantees in the instruments, plaintiffs and defendants in the judicial proceedings, whose rights were directly passed upon; and, what is most important, all the transactions seem to have been bona fide. They were such as persons unfamiliar with the laws of conveyancing and the practice and jurisdiction of courts might honestly confide in, supposing they were acquiring the true title. The idea of good faith was constantly kept prominent in the instructions below, and the jury must have found all ■ the transactions to have been real and honestly entered into. Too much stress cannot be given to this idea. While the law will refuse to protect, mere tricksters, mere gamblers in lands — those who cause to be instituted‘sham proceedings, or to be executed sham conveyances in order to extend their possession by pretended color — it will, on the other hand, .protect those who honestly purchase and enter into actual possession of the improvements, like other bona fide purchasers, in the constructive possession of the premises so purchased, according to the boundaries contained in the instrument under which they enter — having by a proper registration given the world and the true owner notice of the extent of their claim.

2. Such being the character of these transactions, they were also sufficient to establish privity. Those who hold possession of lands independently of previous holders, their several possessions having no connection, cannot so tack their possessions as to avail themselves of that which has gone before. There must be a privity of grant or descent, or some judicial or other proceeding that shall connect the possessions, so that the latter shall apparently hold by right of the former. (See Ang. Lim., 5th ed., pp. 413-14, 417-20, and notes; 3 Washb., 3d ed., pp. 130, 132.) Not even a writing is necessary if it appear that the holding is continuous and under the first entry. Judge Napton, in Menkins v. Blumenthal, 27 Mo. 203, says : “Whether one occupant receives his possession from a prior one, or is a mere intruder upon an abandoned lot, is a question of fact which may be determined by any testimony which is legitimate and pertinent. We know of no rule of evidence which confines the proof to a deed or written instruments.”

The doctrine of privity in possession, under the statute of limitations, is ordinarily applied to those who hold and have held actual possession, but it applies as well to constructive possession under color of title. Such possession tacks to that of previous holders, if there has been a colorable transfer, and the instructions below were in accordance with this view.

3. The possession must have been continuous, and so the court below held; though in language too general, had the defendant sought a more specific direction as applied to the facts. Instead of seeking to make it more specific, he asked the court to instruct “that any substantial break foi^a year or other period, more or less, in the successive possession, will break the chain of possession, and any break in the chain of title will break the chain of constructive possession.” This language embraces two propositions, the latter one being erroneous, inasmuch as we have seen that a constructive possession may be sustained by a colorable chain of title, and the first is more abstract than the instruction to the same effect as actually given by the court.

What constitutes a “breakin the successive possession? ” The jury would be left in the dark upon this important point. It might have been inferred that living off from the premises, a failure to cultivate them for a year or more, for whatever reason, would constitute such break. Nothing would be more erroneous. While an abandonment of the premises will so break the possession of him who has occupied, that the constructive possession of the true owner will again attach, and thus save his right of entry, every failure to cultivate the field for a season, or a delay in repairing the fences when destroyed, will not be held to be an abandonment if a sufficient reason appears.

It is not necessary to consider whether plaintiff’s title accrued under the act of 1847 or the previous act. Counsel claim that when the twenty years had expired from the first possession by Arnold, a complete title was gained, and that the subsequent conveyances must be regular, or there is an outstanding title. This fact would be available, were those who acquired such complete title seeking to enforce their rights. But the limitation act is not in terms based upon the title-of the occupant, but upon the laches of the true owner; and if he has been disseized, and has acquiesced in the disseizin for more than ten years, he cannot bring his action. The legal effect is to give title, to the disseizor, and in availing himself of his right the latter may trace it to and base it upon any statutory period in which such owner was dispossessed. In defending he may answer, if he plead the statute at all, that the plaintiff had not been in possession for more that ten years, and prove the dispossession for any longer period;' and in prosecuting he may set up his possessory title at the time of the dispossession complained of; and if it appear that he, or those of whose possession he is availing himself, have held for a longer period than necessary, it will not disprove his claim.

Judge Wagner concurring,

the judgment will be affirmed.

Judge Adams was not present at the hearing.