Heinemann v. Bennett

Burgess, J.

This is ejectment for eighty acres of land in Franklin county. There was judgment in the court below in favor of plaintiffs for possession of the land and $45 damages. After unsuccessful motion for a new trial, defendants appealed.

The land in controversy is the north-half of the southeast quarter of section twenty-five, township forty-four, of range two, east. The east forty was .patented by the United States Government to James Caldwell on the second day of August, 1852, and the west forty was patented by the United States Government to Rapin Smithson on the first day of September, 1856. The land was sold for delinquent taxes by the collector of the revenue of Franklin county on the fourth day of June, 1867, at which sale one Henry T. Mudd became the purchaser, and received the collector’s certificate of purchase therefor, which he. on the thirtieth day of November, 1869, assigned to one John *116 Heinemann, to whom said collector, on the eighth day of-January, 1870, executed a deed to the land. When Heinemann got his deed from the collector in 1870, he had the land surveyed, and finding that one Charles Lindner had a small portion of it fenced and in cultivation he agreed with him that he might keep it fenced and use it until he, Heinemann, wanted it, and in consideration that he would protect the timber on the land (it w'as all timbered) he gave him a roadway over it. Heinemann then went upon the land and built a lime kiln, in which he burned lime for two successive seasons, and cut timber from the land for the use of an adjoining farm and also permitted others to cut timber from the land. The lime kiln was built of rock on the top of a hill, and was standing there at the commencement of this suit. Heinemann died several years before the commencement of this suit. He kept the taxes paid up on the land from 1870 to his death, and thereafter his legal representatives continued to pay them up to and including the year of 1892. This suit is being prosecuted by his widow and heirs at law.

Defendants and those under whom they claim showed a regular chain of title from the United States G-overnment. At the close of plaintiff’s evidence, and also at the close of all the evidence, defendants ask the court to instruct the jury that under the law and the evidence the verdict must be for defendants, which the court declined to do, and defendants saved their exceptions.

It is insisted that the court committed error in refusing to give the instruction asked by defendants in the nature of a demurrer to the evidence at the close of plaintiffs’ case, and in refusing a like instruction asked by defendant at the close of all the evidence. This contention is predicated upon the ground, as contended by defendants, that there was no evidence *117 adduced that plaintiffs or John Heinemann from whom they claim to derive title, ever acquired the land in question by adverse possession under color of title. The tax deed to John Heinemann, described the land, and used apt and appropriate words of conveyance, and gave him color of title thereto. Wilson v. Taylor, 119 Mo. 626 . And its effect was to extend whatever actual possession he had of the land or any part thereof to the whole tract described in said deed. Section 6768, Revised Statutes 1889, is as follows: “The possession under color of title, of a part of a tract or lot of land, in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract so claimed, shall be deemed a possession of the whole of such tract.” Allen v. Mansfield, 108 Mo. 343 ; Pharis v. Jones, 122 Mo. 125 . The actual possession of a part of the land by Charles Lindner, who, after John Heinemann purchased it, agreed to hold possession under him, became from that time on the possession of Heinemann, and that alone, aside from the fact of the erection of a lime kiln on the land by Heinemann, was such actual possession of part of the tract as to put the statute of limitations in motion in his favor, which by color of title was extended to the whole tract embraced within the color, of title, and when such possession was continued for ten successive years vested the title to the land in him, which upon his death descended to his heirs.

It is true that the instructions given by the court on the part of plaintiffs, and especially the first, are subject to verbal criticism, but when taken in connection with those given on the part of defendants the case was very fairly presented to the jury.

Einding no reversible error in the record we affirm the judgment.

G-antt, P. J., and Sherwood, J., concur.