Opinion
No. 40976.
June 13, 1949.
Plaintiffs recovered a money judgment in trespass for entering and cutting timber, and title was adjudged in plaintiffs. The record title was in defendant but plaintiffs proved title by adverse possession commencing with a parol gift. A declaration as to the parol gift was admissible. The judgment was void to the extent that it adjudicated title, which was beyond the scope of the pleadings, but is otherwise affirmed.
1. TRESPASS: Adverse Possession: Judgments: Defense of Adverse Possession: Adjudication of Title Void. In an action for trespass where defendant has the record title, proof of title by adverse possession will establish that plaintiffs are rightfully in possession. But the judgment was beyond the scope of the pleadings and void insofar as it adjudicated title.
2. ADVERSE POSSESSION: Evidence Sufficient. The evidence was sufficient to establish title by adverse possession in a small tract of land which had been fenced with other land belonging to plaintiffs, and had been used for pasturing cattle and cutting timber.
3. ADVERSE POSSESSION: Evidence: Parol Gift: Declaration Admissible as Res Gestae. A declaration concerning a parol gift of a small tract of land was part of the res gestae and admissible, not as evidence of the fact of a parol gift, but as a verbal part of the possession tending to show that such possession was adverse to the title of the donor.
Appeal from Gasconade Circuit Court: Hon. R.A. Breuer. Judge.
REVERSED IN PART AND AFFIRMED IN PART.
William H. Wessel and R.E. Kleinschmidt for appellant.
(1) The court erred in rendering a decree purporting to adjudicate title, as it was not within the purview of the pleadings, and was, therefore, coram non judice and void. Brown v. Wilson, 348 Mo. 658, 155 S.W.2d 176; Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008. (2) There are five essential elements required to constitute effective "adverse possession," to wit: the possession must be (a) hostile and under claim of right; (b) it must be actual; (c) it must be open and notorious; (d) it must be exclusive; and (e) it must be continuous. Hilgert v. Werner, 346 Mo. 1171, 145 S.W.2d 359; Welsh v. Brown, 339 Mo. 235, 96 S.W.2d 345. (3) "Adverse possession" means a possession in opposition to the true title and real owner, and such possession implies that it commenced in wrong by ouster or disseizin and is maintained against right. Badger Lumber Co. v. Ry. Co., 338 Mo. 349, 89 S.W.2d 954. (4) Use of land which is permissive in its inception continues to be of a permissive character until transformed into adverse use by a distinct and positive assertion of a right hostile to the owner and brought home to him. Pitzman v. Boyce, 111 Mo. 387; Freed v. Greathouse, 238 Mo. App. 470, 181 S.W.2d 41; Fassold v. Shamberg, 350 Mo. 464, 166 S.W.2d 571. (5) If possession is held by mere indulgence and consent or permission of the owner, the possession is not "adverse," however long or continuous it may be. Larwell v. Stevens, 12 F. 559; Kelsey v. City of Shrewsbury, 335 Mo. 79, 71 S.W.2d 730; Riebold v. Smith, 150 S.W.2d 599. (6) It has been definitely held that the pasturing of cattle or the cutting of timber, although they may tend to show ownership, are not in themselves sufficient to establish adverse possession. Horton v. Gentry, 210 S.W.2d 72, and authorities therein cited.
O.A. Mundwiller and Joseph T. Tate for respondents.
(1) The fact that one is put in possession under a parol gift of land is itself evidence of "adverse possession." Auldridge v. Spraggin, 163 S.W.2d 1042. (2) Continuous adverse possession under a parol gift of land for the statutory period will not only constitute a perfect defense as against the donor and those claiming under him, but will confirm title upon the donee. Auldridge v. Spraggin, 163 S.W.2d 1042; Franklin v. Cunningham, 86 S.W. 79. (3) The possession of all successors in title of one claiming by adverse possession will be presumed to be adverse. Miller v. Rosenberger, 46 S.W. 167, 144 Mo. 292. (4) Possession under a parol gift is adverse, not permissive. Coshow v. Otey, 222 S.W. 804. (5) The Statute of Limitations need not be specifically pleaded by one claiming by adverse possession, but may be relied on under a general denial. Carson v. Berthold Jenning Lbr. Co., 192 S.W. 1018; Courtner v. Putnam, 30 S.W.2d 126; Lossing v. Shull, 173 S.W.2d 1. (6) Whether respondents' possession of land for requisite statutory period was adverse so as to vest respondents with title thereto was a question for the court sitting as a jury. Welsh v. Brown, 96 S.W.2d 345; Jamison v. Wells, 7 S.W.2d 347. (7) It is not incumbent on a party claiming property by adverse possession to notify the holder of record title of the character of his possession; it is sufficient if it is open, notorious and adverse under claim of ownership for the statutory period. Miller v. Rosenberger, 46 S.W. 167, 144 Mo. 292. (8) After respondents produced their evidence to show that they and their father had held actual notorious and continuous possession under an unequivocal claim of ownership for the statutory period, as was done in this cause, the burden of going forward on the issue of the intent and character of respondents' claim shifted to appellant and since appellant failed to carry that burden by producing any evidence to the contrary, the trial court rightly found the issues for respondents. Landers v. Thompson, 205 S.W.2d 544. (9) Where trial court sits as a jury, the facts, as found by trial court, where there is any evidence to support such findings or reasonable deductions from the facts in evidence, are accepted by appellate court as the facts in the case. Sample v. Bank of Poplar Bluff, 207 S.W.2d 55; Broderick v. Lucas' Exr., 182 S.W. 154; Idalia Realty Dev. Co. v. Norman's Southeastern R. Co., 219 S.W. 923; Leavitt v. Taylor, 163 Mo. 158, 63 S.W. 385. (10) One who purchases real estate in the open and visible possession of a third person is chargeable with notice of the title and right of the third person. Stone v. Kansas City W.B. Ry. Co., 169 S.W. 88.
Action in the nature of trespass on land. Plaintiffs alleged defendant unlawfully broke and entered the close of plaintiffs; cut down and converted trees to his own use; committed waste; and damaged plaintiffs' fence, for all of which plaintiffs prayed judgment for $120. Defendant denied generally. The trial court, without the aid of a jury, found and rendered judgment for plaintiffs for $50. The trial court further adjudged that "plaintiffs are the owners of the land . . . described and that said defendant has no right, title or interest in and to said land or any part thereof and has no lien thereon." The trial court having by its judgment adjudicated title, the jurisdiction of the appeal is in this court. State ex rel. Brown v. Hughes, 345 Mo. 958, 137 S.W.2d 544; Brown v. Wilson, 348 Mo. 658, 155 S.W.2d 176.
It is contended by defendant-appellant the trial court erred in entering a judgment determining title inasmuch as neither of the parties, plaintiffs nor defendant, had sought title relief; and defendant-appellant further contends the evidence was insufficient in supporting plaintiffs' case — he urges plaintiffs' asserted title by adverse possession was not established. Says defendant-appellant, whatever possession plaintiffs had was not adverse, but was permissive from defendant's predecessor in title. We will outline and examine the evidence relevant to the question of plaintiffs' title by adverse possession.
The close alleged to have been wrongfully entered upon is a small triangular tract of about two acres ("pasture") lying at the northwest corner and being out of the land to which defendant admittedly has the record title as the grantee in certain conveyances (including a sheriff's [144] deed in partition) to him. The land was originally owned by one George (Grandpa) Kraettli, deceased. Plaintiffs own a 440-acre farm to the northward and westward of the Kraettli land. Their farm came to them from their late father, and husband, "Grandpa" Hoelmer, who died in 1929.
If the fences near the northwest corner of the Kraettli lands had been set on true lines and extended to the true corner, cattle belonging to Grandpa Hoelmer could not have readily passed to and from the Hoelmer land north of the Kraettli farm and from and to the part of the lands belonging to Hoelmer lying west of the Kraettli farm. This was because the corner is a "bluff" and rocky. Grandpa Hoelmer and Grandpa Kraettli were the best of friends; and, according to plaintiffs' evidence, Grandpa Hoelmer had declared he and Grandpa Kraettli "talked that over" and Grandpa Kraettli had said to him, "You can have this piece, cut it right through here, and then your cows can come down the hill and come on home." This was more than forty years ago. So Hoelmer fenced off the small triangular tract from the other Kraettli land, and the fence has been there "ever since." Thereafter no other than Grandpa Hoelmer and plaintiffs has possessed the little triangular tract. The fence had been repaired from time to time by the Hoelmers. The Hoelmers have pastured the little tract along with their other pasture lands, and "got wood made off of it." As stated, the little triangular plot is on a bluff, and is rocky; there is a little valley in bluegrass, but the plot is of little or no value "except what timber is on there." The evidence shows that Grandpa Kraettli had been particular about his timber. He had not permitted any of his timber to be cut. But, there was evidence introduced tending to show Grandpa Hoelmer, in 1910 or 1911, had permitted tie timber to be cut from his lands, and tie timber (four or five or six trees) was cut at that time from the little triangular piece of land. A "deer crossing" is "just about on the corner" of the little tract. There was evidence tending to show the Hoelmers put "no trespassing" signs along their fences, including the fence between the little tract and the remaining Kraettli lands. Grandpa Hoelmer had said to hunters, "That is my ground, my fence goes along there. . . . You fellows stay out of there."
There was evidence tending to show Grandpa Hoelmer and plaintiffs had paid no taxes on the little tract. And plaintiffs did not appear at the sale and assert any claim of ownership of the little tract when the Kraettli lands were sold in partition (plaintiffs, of course, were not parties to the action in partition); and plaintiffs did not protest a survey defendant caused to be made with the view of ascertaining the true lines between the Kraettli and Hoelmer lands.
Defendant raised no issue concerning his actual entry upon and his cutting of timber off the little tract, and he makes no contention relating to the amount of the trial court's award. He testified he intended to go in there and cut the timber off that land. "and I got it."
It has been held that possession is sufficient to maintain an action in trespass. But a defendant may dispute a plaintiff's possessory right by showing the title and the possessory right are in himself. Fuhr v. Dean, 26 Mo. 116; Reed v. Price, 30 Mo. 442; Barbarick v. Anderson, 45 Mo. App. 270; Cox v. Barker, 81 Mo. App. 181. In the instant case defendant's record title was not disputed. It was necessary that plaintiffs prove they were rightfully in possession as against defendant at the time the alleged unlawful entry was committed. More v. Perry, 61 Mo. 174. Plaintiffs' claim being based on the possessory right and its violation and defendant having the record title by grant, plaintiffs endeavored to prove their ownership and right to possession against defendant by demonstrating they had acquired title by adverse possession — as defendant's counsel expressed to the trial court during the progress of the trial, ownership "is a fact to be determined in this case." While ownership including the possessory right was a fact to be determined, title, evidencing ownership, was but incidentally involved and neither of the parties, plaintiffs nor defendant, sought the relief of an adjudication of title. So it [145] must be held the trial court's judgment in so far as it adjudicated title was coram non judice and void. State ex rel. Brown v. Hughes, supra; Brown v. Wilson, supra. But plaintiffs' title by adverse possession was nevertheless the evidentiary issue essential in supporting plaintiffs' ownership and possessory right and claim, the violation of the possessory right being the gist of plaintiffs' claim.
The evidence, which we have detailed supra, is sufficient to sustain plaintiffs' case and the trial court's money judgment for plaintiffs. The evidence shows Grandpa Hoelmer and plaintiffs had for more than forty years been in the actual, open and notorious, exclusive, and continuous possession of the little piece of land.
As contended by defendant-appellant, in order to establish adverse possession it was additionally necessary that plaintiffs-respondents should show the possession was hostile and under claim of right — in "opposition to the true title and real owner, and it (adverse possession) implies that it commenced in wrong, by ouster or disseizin, and is maintained against right." Hilgert v. Werner, 346 Mo. 1171, 145 S.W.2d 359. It has been said that, while the acts in pasturing of cattle and in cutting of timber tend to show a claim of ownership, the acts in themselves are insufficient to establish adverse possession. Horton v. Gentry, 357 Mo. 694, 210 S.W.2d 72. Nevertheless, in the instant case, the enclosure of the little tract with the Hoelmer land, and the pasturing and the harvesting of timber — the open and visible exploitation of the land's only productivities — are by us considered as tending to indicate the adverse character of the Hoelmers' possession.
The fact that Grandpa Hoelmer and plaintiffs had not paid taxes on the little tract in controversy is considered as tending to show their possession was not under a claim of ownership. Allen v. Mansfield, 108 Mo. 343, 18 S.W. 901. To be adverse the possession must be with intent to claim and hold the land against the true owner. Now it is the law of this state that when one is put in possession of lands under a parol gift the possession of the donee is adverse from its inception. Reader v. Williams, Mo. Sup., 216 S.W. 738. The entry under the parol gift discloses the intention which "`guides the entry, and fixes its character.' — Angell on Lim., § 386; Ewing v. Burnet, 11 Peters (U.S.), 41." Vandiveer v. Stickney, 75 Ala. 225; Reader v. Williams, supra; Auldridge v. Spraggin, 349 Mo. 858, 163 S.W.2d 1042; Coshow v. Otey, Mo. Sup., 222 S.W. 804; Allen v. Mansfield, supra; Rannels v. Rannels, 52 Mo. 108. The testimony of the declaration of Grandpa Hoelmer relating to his conversation with Grandpa Kraettli was objected to on the ground of hearsay, but the declaration was contemporaneous with Hoelmer's occupancy and possession. The declaration was part of res gestae and admissible, we believe; not as evidence of the fact of a parol gift, but as a verbal part of the possession tending to show such possession was in character adverse to the Kraettli title. Vol 6, Wigmore on Evidence, § 1778. pp. 205-211; Martin v. Bonsack, 61 Mo. 556; Farmers' Bank v. Barbee, 198 Mo. 465, 95 S.W. 225; Heynbrock v. Hormann, 256 Mo. 21, 164 S.W. 547.
Having considered the whole record, we believe the clear weight of the evidence supports the trial court's finding and judgment for plaintiffs.
The judgment in so far as it adjudicates title should be reversed, and otherwise the judgment should be affirmed.
It is so ordered. Bradley and Dalton, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All the judges concur.