Lynde v. Williams , 68 Mo. 360 ( 1878 )

Sherwood, C. J.

Ejectment for 100 acres of land, a plat of which is hereto annexed. The suit was brought September 2nd, 1870.

i. linn county PROBATE COURT: execution sales,

We do not regard Erskine as having acquired any interest in, or right of possession to, the land by reason of his purchase from N. D. Stephenson, who a . . bought W m. b. Donahoes interest m the

east half of section 36, at sheriff’s sale in 1862; and for this reason : The general law respecting execution sales, requires them to be made at the court house door on some day during the term of the circuit court of the county, &c. 1 Wag. Stat., § 42, p. 609; Jackson v. Magruder, 51 Mo. 55; Merchants Bank v. Evans, Id. 335; McClurg v. Dollarhide, Id., 347; Bruce v. Leary, 55 Mo. 431. In Mers v. Bell, 45 Mo. 333, the sale under execution took place during the session of the circuit court of Cass county an d it was held that such sale was properly made, notwithstanding the execution issued from the common pleas court of Cass county. There was no express authority conferred by the act creating that court to have execution sales take place during the sessions of that court, and it was held that the concluding words of section 7 of that act, (laws 1867, p. 86,) providing that: “Judgments rendered by said common pleas court shall be liens on all real estate situated in said Cass county, and with like effect as judgments of the circuit court', and shall be proceeded upon to execution sale in the same manner as is prescribed by law for judgments in the circuit court,” did not impliedly confer authority that execution sales might occur during the session of the common pleas court. The sale to Stephenson took place during the session of the probate court of Linn county. The act creating that court, (laws 1853, p. 392,) by the sixth section, provides that: “ All sales and executions shall be governed and conducted in like manner as sales now are, or may hereafter be, in the circuit court in this State.”

It will be observed that the words just quoted are of similar import to those contained in the section quoted in Mers v. Bell, supra, words which in that case, were, as just seen, held not to admit of a construction authorizing the occurrence of sales under executions, otherwise than as prescribed by the general law. Nor do we conceive that section 7 of the act establishing the Linn probate court, requiring that deeds of sheriffs, making sales under executions issued from that court, should be acknowledged before the probate judge in probate term time, would impliedly and necessarily confer, a power to sell at any other time than the general law directs. And unless the words of the 7th section would 'of necessity bear that sort of construction, we must, under the authority of Mers v. Bell, supra, hold the sale which occurred during the session of the Linn probate court a nullity. These remarks uphold the court below in its refusal to instruct in reference to that sale, as prayed by defendants.

2. -: -: descents and distrftutions.

Nor are we of opinion that the court erred in giving the first and second instructions on behalf of the plaintiff. It was shown by the evidence that Thomas , ^ . „ _ . -. JB loyd was the nephew of Jonathan filoyd, the admitted patentee of the land; that Jonathan Floyd died in 1823, (his father and mother having predeceased him,) leaving at his death a widow and son; that the son died without issue, his mother surviving him. It is quite plain, under our statute of descents and distributions, that the mother became the heir of her son, 1 "Wag. Stat., § 1, p. 529, and that in consequence thereof, Thomas Floyd derived no title from the patentee.

3. __. a<iverse possession,

Aside from mere verbal criticism, plaintiff’s third instruction was unquestionably correct, asserting, as it does, a doctrine so often enunciated by this court Key v. Jennings, 66 Mo. 356, and cases cited ; and there was evidence tending to show adverse possession for the requisite period on the part of those under whom plaintiff claims; and this was sufficient basis to maintain ejectment on, notwithstanding that after the expiry of the statutory period, those under whom plaintiff claims had abandoned the premises, and they were found thus abandoned in 1870, when Williams, as tenant for Erskine, took possession.

4 _ _. ™SnotbRerpVresumea.

But we cannot give sanction to the fourth instruction on behalf of plaintiff. If he and those under whom he claims were possessed of the premises in controversy for a sufficient length of time, as set 0ut in plaintiff’s third instruction, this conferred the title on plaintiff. It is, however, evident that such title, if acquired, was the result of disseizin, and that plaintiff and others from whom he derives title, were, until the lapse of the statutory period mere disseizors. It is true that the existence of many things once proven to exist, are presumed to continue; but we do not regard that rule of presumption as applicable to the present instance. The books indeed lay down that a seizin once proved, or admitted, is presumed to continue until a disseizin is proved, 1 Greenl. Ev., § 42 ; but it certainly cannot be true that if you establish the existence of a disseizin at one period its continuance must, therefore, be presumed until the contrary appear. Under such a ruling and theory of the law, the transfer of the title of the true owner to a mere disseizor, would, it must be confessed, be greatly facilitated; and the real owner, in consequence of a few months adverse possession at some remote and forgotten period, would frequently be presumed out of his estate. The plaintiff’s sole reliance for recovery was such a possession of the premises in dispute, and for the requisite period, as described in his third instruction, nothing short of a proof of'such a possession would answer, and the burden of proof was on his shoulders to fully and affirmatively establish this. Brown v. King, 5 Met. 173. He could not, therefore, eke out the necessary facts, which alone would entitle him to recover, by presumptions.

5. lands and LAND TITLES: adwiíat Pnotes!uffi’ ded proof of.

Nor can we approve the concluding portion of the fourth instruction now under discussion, for yet another reason: That portion declares “that any 1 J acts done 011 the premises indicating an intention to hold the land is sufficient.” This language is altogether too loose. Under such an instruction, the mere posting of a notice on the land notifying* the owner that the notifier intended to hold the land, would be sufficient. Our court has gone a great way in respect to what constitutes adverse possession, but certainly never so far as to sanctiou such an instruction. Had the evidence as to adverse possession on the part of plaintiffs been conclusive, we might have not reversed the judgment, because of the fourth instruction, but have contented ourselves with condemning the errors which it contains ; as it is, however, we cannot certainly say but that the jury were greatly influenced by its erroneous teachings in rendering'their verdict. We, therefore, reverse the judgment and remand the cause.

All concur.

Reversed.