author: LAMM, J.

text:
    JOHN R. AKINS v. ALVIN ADAMS, Appellant.
    Division One,
    March 3, 1914.
    1. EVIDENCE: Records of Deeds: Acfcounting for Original. A showing that the party offering the record of deeds had never had the original deeds in his hands, that he had bought his land without the originals having been turned over to him, relying on their record for the evidence of his chain of title, that he knew nothing about the whereabouts of the originals and that such inquiries as he had been able to make of those parties who would likely have any of the originals had been futile, is a sufficient compliance with the statute requiring any. party wishing to use the record to show to the court by affidavit or oath that "such instrument is lost or not within the power of the party wishing to use the same,” and authorizes the admission of the record in evidence.
    2. -: Deed: Faulty Description: Corrected by Decree. An objection that a deed which describes the land as “the south-west quarter of south-west quarter of section No. thirty-, two (32) and east half and south-west quarter of south-east quarter 31, 35, 24, containing 160 acres,” etc., is so defective in description as to be inadmissible in evidence, becomes purely academic, worth nothing for real justice, where there is introduced in evidence an unassailed and unassailable decree of the circuit court quieting the title against the grantors therein, which decree, with apt words of description vested the title in the party offering both the deed and decree.

      3. -: Negative Fact. It was not error to exclude in the ejectment suit, as tending to prove that plaintiff’s grantor only claimed up to the division fence, testimony of a witness that he heard no claim whatever on the part of the then owner — a negative fact, which, there being no question of estoppel or unfavorable inference growing out of’silence, cut no figure in the case.
    4. --: Claim of Ownership: Statements by Parties in Possession. Acts of owners of the land and statements of owners in possession are admissible as indicating the extent of their claim; but mere absence of all statement, or what the witness has heard others say, is not evidence of any probative force.
    5. TITLE: Imperfections: No Common Source: Estoppel, Etc. Where no common source of title is admitted, assumed or proven to exist, the rule of convenience or of estoppel which takes no note of defects in the common stem of title anterior to the common source, cannot be invoked.
    6. -: Ejectment: No Common Source: What Plaintiff Must Show. Where there is no common source of title, the plaintiff in ejectment must recover on the strength of his own (not on the weakness of his adversary’s) title; and he must recover on a legal (and not a mere equitable) title; and those things imply that he mpst recover on his paper title or on title by limitations. He must be cast if there is shown to be outstanding a subsisting legal title. If he has never been in possession of the strip of land sued for, he must rely on his paper title alone.
    7. -: -: Outstanding Title: Idem Sonans: Patentee Yroth: Decree Against Troth. Where plaintiff in ejectment must rely upon his paper title alone, and the basis of his title is a patent from the United States, dated in 1845, to Isaac Yroth, who never conveyed the land, a decree in a suit in equity on service by publication brought against Isaac Troth, if living, and the unknown wife and unknown heirs of Isaac Troth, if deceased, vesting the title of said Isaac Troth in plaintiff, is not sufficient to show that the outstanding title of Yroth was vested in plaintiff. Yroth and Troth are not idem sonaw, and the evidence showing that plaintiff’s chain of title breaks with the outstanding title standing in Yroth, a judgment for plaintiff cannot stand. But the name “Yroth” is so singularly archaic that the copyist of the patent or its record may have mistaken the 7 for a T, and the case is remanded for a new trial.
    Appeal from Polk Circuit Court. — Hon. G. H. Skinker, Judge.

      Reversed and remanded.

      Rechow & Pufahl for appellant.
    (1) The court committed error in admitting a number of the deed records offered in evidence by the plaintiff without the proper preliminary proof that the original deeds could not be had. (2) The court committed error in admitting in evidence record of deed of Granville L. Noland, deceased, by administrator, to. Harriet E. Noland. O’Day v. McDaniel, 181 Mo. 534. “East half and south west qr. of south east qr. 31, T. 35, R. 24,” will not in an administrator’s sale be read as being section 31, township 35, range 24. (3) The court committed error in excluding evidence offered by defendant tending to show that plaintiff grantors only claimed up to the fence line. Such evidence is admissible; also as to the Government corners. “Parol evidence is. admissible to establish the location of monuments, and even hearsay evidence and evidence of general reputation is admissible.” Tiedeman on Real Property, sec. 832; Diggs v.-Knotz, 132 Mo. 250. (4) The defendant’s demurrer at the close of the plaintiff’s evidence should have been sustained, (a) Because the plaintiff had failed to show a complete chain of title in himself, (b) Because the survey had not been made in accordance with the rules and regulations of the United States Land Department. Knight v. Elliot, 57 Mo. 317; Frazier v. Bryant, 59 Mo. 124; Yaughn v. Tate, 64 Mo. 491; Lemmon v: Hartsook, 80 Mo. 19; Jacobs v. Mosley, 91 Mo. 464; Dolphin v. Klann, 246 Mo. 488; Lester’s Land Law and Regulations, 722; Manual of Surveying Instructions, 26. .For the same reasons, the instruction asked at the close of all the evidence should have been given. (5) The original entry as shown by the patent, is to “Isaac Yroth.” The decree in evidence, by which it is evidently attempted to get this title out of the entryman, is against “Isaac Troth.” Now, Isaac Yroth and Isaac Troth are not idem soncms.

      W. W. Wood and L. Cunningham for respondent.
    (.1) The preliminary proof that the original instruments could not be produced was ample to authorize the court to admit record evidence showing the title of plaintiff. A reading of the evidence will sustain this proposition. (2) The court properly admitted the record of the deed of Granville L. Noland, deceased, by his administrator, in evidence and it became a question for the court to determine the meaning of the abbreviations when considered together with all the other facts in evidence. Even if this deed was not in proper form the decree offered in evidence was sufficient to establish plaintiff’s title to the land and vest in him all the interest of said Noland. (3) The court did not exclude any proper evidence offered by the defendant that the persons under whom plaintiff holds title claimed the fence to be the true line, or claimed otherwise than to the true line. (4) Defendant’s demurrer was properly overruled. Plaintiff introduced in evidence original deeds, record copies of deeds, and decree of court showing a complete' chain of title. There could be no doubt of plaintiff’s title. The survey was made according to Government regulations and to conform to the original Government field notes and the corners established by the Government. The fact that as a practical proposition there were more than 160 acres in the southwest quarter of section 31 would not make the survey invalid, and the excess in that quarter section was properly apportioned to the different landowners. Secs. 11316, 11320, 11321, 11322, E. S. 1909; Carter v. Hornback, 139 Mo. 238; Mayor v. Burns, 114 Mo. 426; Mining Co. v. Davis, 156 Mo. 422. The corners established by the United States surveyors would control. Climer v. Wallace, 28 Mo. 556. And if a corner were not found the field notes of the United States survey will control in ascertaining- such corners. Whitehead v. Ra-gen, 106 Mo. 235.
   LAMM, J.

— Suing in ejectment on a petition in conventional form, with ouster laid as of a day in March, 1909, plaintiff had a verdict at a trial to a jury in the Polk Circuit Court for possession of the two parcels of land described in his petition, to-wit: a harrow strip off of the east side (a bit wider at one end than the other) and a strip in the shape of a wedge off the north side of the southwest quarter of the southeast quarter, section 31, township 35, range 24. We omit technical descriptions which were by metes and bounds, courses and distances. Prom a judgment following said verdict, defendant on due and apt steps comes here by appeal. The amount of land in question is eighty-five one-hundredths of an acre, the dispute is over party lines, and the answer is a general denial.

There is no evidence tending to show that plaintiff or his grantors, near or remote, had been in possession of the two strips of land for a great many years more than sufficient to confer title by limitation, if the element of adverse possession be present on behalf of defendant. Contra, there was uncontradicted evidence tending to show that defendant had been in possession for a great many more years than sufficient to confer title by limitation, provided that possession was adverse and under a claim of right. The respective farms of defendant and plaintiff were coterminous and both had been under the plow for a generation or more and in actual possession {pedis possessio). On the north side of said forty there was for many years a party fence, and on the east side a like fence. Both these fences apparently divided the lands of plaintiff and defendant. There was an issue, threshed out at the trial (and decided against defendant), as to whether those party fences were on the true lines— defendant affirming and plaintiff denying that fact and evidence on one side going in pro and on the other con thereon. There was an issue, likewise threshed out (and decided against defendant), as to whether defendant’s possession was adverse and under claim of right — plaintiff denying and defendant affirming that fact and the evidence was pro and con on that issue. There was no common source of title agreed to, assumed or shown to exist. To make his case plaintiff put in evidence the record of an official survey and supplemented that with oral testimony, among' others, of the two surveyors who made it, to-wit, the surveyors of Polk and Cedar counties (the farm being on the county line between the two and one of the section lines run being the county line, as, we understand it). Also to ■make his case plaintiff undertook to deraign title from the IT. S. Government down to him in a claimed unbroken chain of conveyances, while defendant introduced no chain of title whatever but stood on a claimed continuous, open, notorious and adverse possession under a claim of right for a time sufficient to confer title on him. He furthermore (below and here) impugns the validity and integrity of the survey plaintiff relied on. He furthermore (below and here) challenges plaintiff’s record title as insufficient to support ejectment. There are rulings challenged on evidence and on giving and refusing instructions which are also assigned for error.

Any further facts necessary to pass on material points will appear in due course and proper place in the body of the opinion, in connection with the disposition of those points. We state questions in our own way.

I. Of rulings on the admission of evidence.

(a) In putting in his chain of title plaintiff offered the record of sundry deeds passing between plaintiff’s remote grantors and grantees. It was objected below (not that the record disclosed any defect in the instruments or in their acknowledgments, but) •that no sufficient ground was laid for the introduction of such record, for that the original deeds were the best evidence and they were not accounted for.

The broad objects of our registry acts being to preserve muniments of title against the vicissitudes of loss or slips and lapses of memory and to give notice thereof to the world, it would be expected that such beneficent purposes would be supplemented by a liberal rule regulating the use of such deed records in the courts of the land. A stringent rule in that regard could not justify itself on the inherent good sense of the thing; for the record presumably in the first instance is as good as, and a replica of, the original. Accordingly we find two very definite, liberal statutory rules directed in part to that end, thus:

One (R. S. 1909, sec. 2818) making deeds acknowledged as provided by the statute admissible without further proof of their execution, thus relieving parties from common law burdens of proof of execution. The originals are always admissible, regardless of the records (Parkinson v. Caplinger, 65 Mo. l. c. 294) and the right to use or have the originals produced may be a very valuable right, for example, in case the record is defective.

The other (Ibid., Sec. 2819) permits the use in evidence of the record of a deed whenever (quoting) “it shall be shown to the court by the oath, or affidavit of the party wishing to use the same, or of anyone knowing the fact, that such instrument is lost, or ■not within the power of the party wishing to use the same.”

In the instant case it was sufficiently shown, under the oath of plaintiff, that the originals of the deeds, whose records were offered in evidence and allowed over objection, had never been in his hands. He had bought Ms land without the originals having been turned over to him, relying on their record for the evidence of his chain of title. So, he knew nothing about the whereabouts of those deeds and such inquiries as he was able to make of those parties who would likely have any of the originals had been futile. We think the showing was sufficient to make the record admissible, having regard to the judicial exposition of that statute. The statute is an old one and the phrase “not within the power” was early construed agreeably to the foregoing view (Barton v. Murrain, 27 Mo. l. c. 238 et seq.):

“The words of the statute, ‘not within the power,’ should be construed as not within the control or possession of the party wishing to use a copy — that is, not in the possession of the party, his agent, servant or bailee, or other person under his control. Therefore, if the original is presumed to be in the hands of a third person, a copy may generally be read without the preliminary oath or affidavit of the party wishing to use it; and in all other cases, in the absence of any suspicion of unfairness, notMng more should be required than that the oath or affidavit should show that the original is not within the control of the person offering a copy.”

Agreeably to the above pronouncement are Boyce’s Trustees v. Mooney, 40 Mo. l. c. 105 et seq.; Patton v. Fox, 179 Mo. l. c. 533 et seq.; and Walker v. Newhouse, 14 Mo. *373.

The point is ruled against appellant.

(b) In the devolution of his title plaintiff offered the record of a deed from one Tillery, administrator of Granville L. Noland, deceased, to Harriet E. No-land, a link in his chain. As appears in the abstract of record, as corrected by an ink erasure, the land description in that deed was as follows:

“The southwest quarter of southwest quarter of section number thirty-two (32) and east half and southwest quarter of southeast quarter 31, 35, 24, containing 160 acres, and lot 9 NW. fractional quarter, section 6, township 34, range 24, situate in said county of Polk and state of Missouri.”

In appellant’s brief the description reads this way: “East half and southwest qr. of southeast qr., 31, T. 35, R. 24.” We shall assume the description in the abstract, as corrected by the ink erasure, is the correct one. Appellant contends that the bare numerals, “31-35-24,” are meaningless and cannot be judicially held to be a description of any land. Therefore, the deed conveys nothing, and, having objected to its introduction on that score, he contends it was error to admit it.

It will be observed, on one hand, as of some value, that the first forty in the description in the abstract is said to’ be in “section 32;” that all of the land is in Polk county, Missouri; that the amount of land in the first part of the description (i. e., down to the “lot”) is said to be one hundred and sixty acres; that four forties are described, but, on the other hand, it will be observed that the word “section” is pretermitted before the figures “31,” the word “township” before the figures “35,” and the word “range” before the figure “24,” nor do any abbreviations take their places.

As to the contention now in hand, we say: Having regard for the statute which permits the use of abbreviations and numerals in land descriptions in tax proceeding's, Revised Statutes 1909, section 11520 (which statute itself is founded on prevailing usages in this State in relation to the use of customary numerals and abbreviations in land descriptions), and having regard to the exposition of that statute, together with judicial pronouncements upon the usages aforesaid in such cases as Simmons v. Affolter et al., 254 Mo. 163; Hector v. Horrell, 248 Mo. 166; Miller v. Keaton, 236 Mo. 694; State ex rel. v. Vaile, 122 Mo. l. c. 48 et seq.; Burnett v. McCluey, 78 Mo. l. c. 691 (g. v.), it is not necessary for us to rule that there is a patent ambiguity which voids the deed as a conveyance under the doctrine of such cases as Martin v. Kitchen, 195 Mo. 477, and cases cited therein, or a fatal indefiniteness as in O’Day v. McDaniel, 181 Mo. 529. If plaintiff had no other string to his bow and was so hard put to it as to have to rely on that deed alone, he might be confronted by an impassable barrier and be east at that point. But ’tis not so and we put the question to one side as reserved; because there was introduced in evidence a decree of the Polk Circuit Court quieting title as against the Nolands who are dead and against those of them who are heirs and are alive, which decree is not questioned here as sufficient to vest whatever title they then had out of them and into plaintiff’s immediate grantor, James D. Akins, nor was its sufficiency questioned below in that regard. It may therefore stand in lieu (and, in its effect, in the place and stead) of the conveyance challenged.

In that view of the matter, the admission of the deed could not affect the merits; and the error, if any, becomes nonreversible, a mere academic speculation, worth something for doctrine for doctrine’s sake, but worth nothing for real justice in the case at barí Hence, the point is ruled against appellant.

(c) It is assigned for error that the court excluded evidence tending to show that plaintiff’s grantors only claimed up to the fence line, but we see no such ruling on the part of the court. What happened two or three times was this: When one witness was on the stand, Mr. LaRue, it was sought to prove the negative fact that he heard no claim at all on the part of a then owner, “Uncle Jeff Fisher.” By another witness, Mr. Plopper, who lived in the neighborhood, it was sought to show the same fact. The court excluded the testimony of both witnesses on that point. No testimony was excluded of conversations or statements of the owners or any of them, or of any act of theirs relative to -the line or to fences or to claims made by parties of ownership on either side of the fence, bnt it was sought to put into the case, as a fact to influence the jury, the bare, negative fact of the witness not hearing anything whatever on the subject. We cannot see that the evidence would have been of any value, under the facts of this case, if it had been allowed to go in, nor can we see that its absence cuts a figure one way or the other. There are circumstances recognized by the courts where, when one should speak and does not, but remains mute, unfavorable inferences or estoppel may spring, but this case on the facts dealt with by the witness does not call for the application of those doctrines.

Finally, a witness, Rains, was on the stand. He testified that he lived in the neighborhood fifteen years before, off and on; that the fences are now on the line they were then on; witness had worked on the fences and testified that the respective owners worked the land up to the line of the fence and he had worked for both owners. Testimony of like character as above was excluded at this point. Defendant then made the following tender of evidence: “I offer to show that for the last fifteen years the different parties who have owned and tended the Akins tract of land never have claimed any land beyond the fence line.” To that general offer the court said: “Unless he heard them say they did not claim it beyond the fence line, it will be hearsay; if be heard them say they did not claim it, it will be admissible.” The witness then answered: “They always• claimed the fence was on the line and was put there from where the corner rocks stood.” The rulings of the court and what was done under them indicated his theory to be that acts of owners were admissible and statements of owners in possession were admissible, (vide, Heynbrock v. Hormann, post, p. 21, where the authorities on that head are reviewed), but tbe mere absence of all statement, or wbat tbe witness had beard others say, was not evidence of any probative force. We find no fault with tbe ruling. Indeed no exception was saved to tbe last one and the incident was closed.

We rule tbe point against appellant.

II. Did plaintiff show a good legal title?

(a) In leading up to tbe turning question on this bead, some applicable observations are not amiss, thus: There was no common source of title admitted, assumed or proved to exist. Hence in dealing with imperfections in plaintiff’s title, if any, we may not invoke tbe rule of convenience or of estoppel which takes no note of defects in tbe common stem of title anterior to tbe common source. [Feller v. Lee, 225 Mo. l. c. 328.]

So, in tbe strict legal action of ejectment plaintiff must recover on tbe strength of bis own (not on tbe weakness of bis adversary’s) title. He must recover on a legal and not on a mere equitable title. So, be stands to be cast if there is shown to be outstanding a subsisting legal title. So, be must either recover on bis paper title or on title by limitation. We cite tbe statutes and some cases sustaining one or the other of those trite propositions in ejectment (From those cases discern all; for they announce tbe harmonious doctrines of this bench.): Martin v. Kitchen, 195 Mo. l. c. 487; Nalle v. Thompson, 173 Mo. l. c. 614 et seq.; McAnaw v. Clark, 167 Mo. l. c. 447; Thompson v. Lyon, 33 Mo. 219; Norcum v. D’Oench, 17 Mo. l. c. 114; Kingman & Co. v. Sievers, 143 Mo. l. c. 525; R. S. 1909, secs. 2382, 2389.

In tbe instant case, on this record, neither plaintiff nor bis grantors were ever in actual possession of tbe two parcels of land in dispute. To tbe contrary, so far as tbe record shows, defendant always bad possession since title emanated from tbe Government. It becomes apparent, then, that plaintiff cannot rely for title on adverse possession in him. He is, therefore, limited to his paper title and if that fails him his right to possession fails by the same token and his judgment for possession is left -without support.

(b) It will not be necessary to set forth the deeds in plaintiff’s chain of title. For the purposes of the point now in mind, it may be assumed that a perfect title was shown, barring one particular, now to be mentioned. Plaintiff introduced a patent, dated in 1845, from the United States to one Isaac Yroth, for the southwest quarter of the southeast quarter of section 31, township 35, range 24, and obtained an instruction based on that patent, as a muniment of title. Yroth never conveyed, so far as shown. There is some confusion in the record and at one place it would seem that the record of the patent was offered in evidence instead of the original; at another, the original. At a certain time plaintiff’s immediate grantor, James D. Akins, brought a suit in equity on service by publication to clear up his title against sundry persons, among them, as appears from the body of the decree itself, one Isaac Troth, if living, and the unknown wife and unknown heirs of “Isaac Troth,” if deceased. Isaac Yroth is not made a party nor is any one, known or unknown, by the name of Yroth. No objections, nisi, were offered to the decree and it is not now contended it was not effective to clear up the title in all other respects, save in the break in a conveyance from Yroth, the patentee. Such exceptions were saved when a demurrer was offered to the evidence by defendant at the close of plaintiff’s case and overruled, and when instructions were asked and overruled, as bring here the question whether that decree, -which purported to vest the title out of Isaac Troth and into James D. Akins, had the effect of vesting in plaintiff’s grantor the title of the original patentee and entry-man, Isaac Yroth. It is of some significance that, although the proposition is discussed in appellant’s brief, respondent, the plaintiff, treats it sub silentio. The question may be put in another form, namely, is ‘ ‘ Troth’ ’ idem soncms with ‘ ‘ Yroth 1 ” We cannot well give an affirmative answer to that question. The name “Yroth” is so archaic and singular in its spelling that we cannot rid ourselves of a suspicion that the record of the patent was read into the record instead of the original and that it is imperfect for that the copyist mistook Y for T, which might readily happen. If that be so, the truth may be ascertained on another trial by reference to the records at Washington. We must take the unchallenged record here as we find it and as importing verity. The letter Y, a consonant (when it isn’t a vowel), has fricative (and, we might add, frisky) qualities and values in sound; for example: the sound of short or long i, the sound of e as in ever (vicie, “zephyr”), the, sound of long e. Take the French town, Yvetot, which a scholar tells me is pronounced ev-to, or the patron saint of lawyers, dead for six hundred years, St. Yves, pronounced as if spelled ev. (Nota bene: We mention this saint for scientific purposes to illustrate a dry point in pronunciation and the values of the letter “y,” not to bring up anew or blazon forth in mother tongue the sarcastic and scandalous innuendoes slyly sleeping in the shade of the dead language of a processional chant in his honor, which a pundit once told me ran this way:

“Scmctus Yvo erat Breto;
Advocatus, et non latro,
Bes mirona populo.”)

But I know of no tolerated usage permitting Y to have the sound value of T. Hence, notice to Troth, as here, cannot be held notice to Yroth. Accordingly we rule that, upon the utmost fringe and stretch of liberality, the two names are not idem soncms. With that ruling plaintiff’s title breaks and he cannot recover on this record. This ruling disposes of the case on this appeal, but as we have concluded to remand it, there is another question which should be disposed of, if possible. Attend to that.

III. Of plaintiff’s surveys.

Section 31 in question is an exterior section lying adjacent to and east of the range line. It is a fractional section, the lines running long and making an excess over 640 acres. Defendant owns the forty in the southeast quarter of section 31 lying east of plaintiff’s forty. Defendant contends that under Federal laws and regulations the excess must be thrown into the west half of section 31, and relies on Knight v. Elliott, 57 Mo. 317, and cases following that, for the doctrine that the east line of the section should be ascertained by establishing the section comers on the southeast and northeast and then measuring westwardly forty chains, making the east half of the section 320 acres, each quarter of it 160 acres and the two tiers of forties in the east half of the section exactly forty acres each, thus throwing all the excess in the west half of the section. Defendant further contends that plaintiff’s survey was not made in accordance with Federal rules as set forth in the Knight-Élliot case. Plaintiff contends that the survey was made in accordance with the State statute (Chap. 115, R. S. 1909) and was not contrary to Federal rules; that all the Government comers of the section were known and found except the southeast corner; that it was established by a correct survey; that the quarter section corner on the east line of section 31 was a Government comer and was known and found, and, as we understand, his contention is that the quarter section corner on the south line of section 31 was a known and found Government comer. Be that as it may, the ultimate contention of plaintiff is that the Government section and quarter section corners were found or established in strict accordance with the Government field notes;, that on finding or establishing those comers it was ascertained that the true Government lines bounding the southeast quarter of section 31 ran long, making an excess in that particular quarter section, which excess the surveyors undertook to divide in accordance with statutory rules. He relies on a line of cases cited in his-brief and on our statutory rules for surveying. We-will not go into the matter or decide the controversy because the plats used at the trial from which the witnesses testified, to which they referred, were not introduced in evidence. So, the testimony of witnesses anent. this survey, produced here in narrative form, is so-chaotic, so incoherent and unintelligible in vital particulars that the like of it in court records may be found, nowhere so well reported as by Rabelais in the celebrated (and, possibly, imaginary) case of Lord K * * * v. Lord Suckfist and the wonderful judgment pronounced by Pantagruel therein, a judgment doubtless-familiar to'the whole Missouri bar. (Vide, Rabelais-Pantagruel-Urquhart’s Tr., Book 2, chap. 10; or vol. 6, Ill. L. Rev., tit., Liaw from Lay Classics, p. 189, when some liberty is taken with plaintiff’s name). It is. impossible for us on this record to pass on the merits of that contention. Impotentia excusat legem. No one (not even a judge) is bound to do what is impossible. [Strother v. Barrow, 246 Mo. l. c. 254.]

If plaintiff be presently advised that his legal title-is found to be in a shape to support a judgment for possession, and a new trial is worth while, the shadows-in the record may be lifted.

Points ruled dispose of material questions. The-judgment is reversed and the cause remanded.

All concur.


source: Caselaw Access Project

author: BROWN, C. PER CURIAM.

license: Public Domain

text:
    H. J. DAVIDSON v. A. J. SCHMIDT et al., Appellants.
    Division One,
    March 3, 1914.
    CIRCUIT COURT: Jurisdiction: Mechanics’ Liens. The circuit courts have original jurisdiction, concurrent with that of justices of the peace, over suits to enforce mechanics’ liens for amounts less than fifty dollars.
    Appeal from Cape Girardeau Circuit Court . — Hon. Henry G. Riley, Judge.
    Affirmed.

      G. H. Danes and Robert L. Wilson for appellants.

      Benson G. Hardesty for respondent.
   BROWN, C.

This suit was instituted in the circuit court for Cape Girardeau county in March, 1906, to enforce mechanics’ lien against a house and lot in the city of Cape Girardeau for $13.50. It resulted in a judgment for the plaintiff enforcing the lien for that amount, from which an appeal was taken to the St. Louis Court of'Appeals, which reversed the judgment on the ground that the circuit court did not have jurisdiction of the subject-matter of the action. Judge Reynolds of that court, who sat in the cause, deemed the decision contrary to the decisions of this court in the following- cases: Tackett v. Vogler, 85 Mo. 480; Lackland v. Walker, 151 Mo. 210: and St. Louis v. Hollrah, 175 Mo. 79. He dissented on that ground, and requested that the case he certified to this court as provided in the Constitution, which was done. It is now before us on the sole question whether or not the circuit court has jurisdiction to enforce mechanics’ liens for amounts less than $50.

At the time we adopted the Constitution of 1865 the mechanics’ lien law had been on our statute books for more than thirty years . During all that time the circuit courts were charged with its enforcement under 'the provisions of section six, article five, of the Constitution of 1820, which provided that they should have “exclusive original jurisdiction in all civil cases which shall not be cognizable before justices of the peace, until otherwise directed by the General Assembly.” The same provision was continued in the samé words in the Constitution of 1865. The circuit court is a superior court of general jurisdiction and nothing will be presumed to be without its jurisdiction,- while nothing will be presumed to be within the jurisdiction of the justices of the peace, which is not exercised according to the course of the common law, but depends entirely upon the provisions of the statutes which create and regulate the office. [State ex rel. v. Hopkins, 87 Mo. 519; Pleasant Hill v. Dasher, 120 Mo. 675.]

The court, having as we have seen, exclusive jurisdiction over these cases, and the Constitution having declared that this condition should continue “until otherwise directed by the General Assembly,” that body by the act of March 30,1872 (Laws 1871-2, p. 44), directed that justices of the peace should have jurisdiction in all actions brought to enforce mechanics ’ liens in every county of less than 100,000 permanent inhabitants where the amount or balance claimed to be due does not exceed ninety dollars. It further provided as follows: “Every person entitled to such lien rfiay hereafter, after having complied with the provisions of the said chapter one hundred and ninety-five, and after having filed his account and statement, as prescribed by section five of said chapter, institute his-actions therefor, as above provided.” The question before us, reduced to its lowest terms, is whether the provisions of the Act of 1872 just referred to have the effect of divesting the circuit court of the jurisdiction it had theretofore exclusively exercised, or whether it simply hacl the- effect which its words required, of an exercise by the Legislature of the constitutional power to direct that this exclusive jurisdiction be shared by another tribunal.

The appellant supports its contention by the ingenious suggestion that the Act of 1872 should have the effect of a repeal of all laws, including constitutional provisions, on the same subject, and their reenactment as of the same instant of time. In this way they say that the justices of the peace already having jurisdiction in the class of' mechanics ’ lien cases referred to, the constitutional grant of jurisdiction of the circuit court could not attach to it. This is a very interesting fiction but it ignores one of the most universal and useful rules of statutory construction, requiring those parts of an old statute retained as part of an amended scheme, to be considered not as if repealed and again reenacted, but to have been the law all along, and the amendments not to have been the law at any time before their passage.

It is true that this court decided differently in Stamps v. Bridwell, 57 Mo. 22, which was followed in Williams v. Payne, 80 Mo. 409; but these cases were taken up and expressly overruled by us in Tackett v. Yogler, supra, a well considered case in which the court says that the rule announced in those cases should be no longer adhered to. This case has been followed in State ex rel. v. Hopkins, supra; Pleasant Hill v. Dasher, supra; Lackland v. Walker, 151 Mo. 210; St. Louis v. Hollrah, 175 Mo. 79. We are still satisfied with the doctrine we announced in those cases.

It follows that the judgment of the Cape Girardeau Circuit Court must be affirmed.

Blair, G., concurs.

PER CURIAM.

— The foregoing opinion of Bbown, C., is adopted as the opinion of the court.

All the judges concur.


author: GRAVES, J.

text:
    MARY HEYNBROCK et al., Appellants, v. WILLIAM HORMANN.
    Division One,
    March 3, 1914.
    1. EVIDENCE: Ejectment: Limitations: Declarations of Claim of Ownership. Declarations by defendant’s deceased ancestor, made by him at the time he was in possession and cultivating the strip of ground in suit and known to be so in possession by plaintiff’s ancestor, to the effect that a certain hedge fence was the line between the two farms and that it was agreed between said ancestors that, whatever the survey might show, said fence should be the line, is competent evidence in sup: port of defendant’s claim of ownership where his defence is title by limitation. Such declarations are not admissible to prove title, but though self-serving they are properly admitted to show the character of the possession (as for instance, whether or not it was under claim of ownership) where the Statute of Limitations is invoked.
    2. ACTION AT LAW: Trial Before Court. In an action at law tried before the court without the aid of a jury, the findings of fact stand on appeal as does a verdict of a jury.
    3. -: -: General Finding: Limitations. And if there is substantial evidence to support the defense of adverse possession, the presumption will be indulged that the trial court sitting as' a jury predicated his finding and judgment upon that ground, although the judgment is general in its terms and does not recite upon what particular ground the finding was made for defendant.

      4. -: -: Instruction to Find for Defendant. Where the action is one at law and is tried by the court sitting as a jury, it is not error to give a declaration of law to the effect that “the court declares that under the law and evidence in this case the plaintiff cannot recover and the finding of the court should be for the defendant.” If the issues of fact had been tried by a jury such an instruction would have been erroneous, but it cannot be said to' have misled the court or to have withdrawn from his consideration any testimony adduced at the trial.
    Appeal from Lafayette Circuit Court. — How. Samuel Davis, Judge.
    Affirmed.

      Alexander Graves and Horace >F. Blackwell for appellants.
    (1) It is conceded by the first stipulation set forth in the “Statement” that William Heynbrock, Sr., was. the owner of the title of the land described in said stipulation. The undisputed evidence of County Surveyor Walker, quoted in the statment, established that the strip of land involved in this suit is part of the land described in said stipulation. The will of said Heynbrock, Sr., cited in the statement, vested the title of the whole farm for life in his wife, the plaintiff. The defense was the Statute of Limitations. Plaintiff had a prima-facie case. It was reversible error to grant in favor of defendant the peremptory declaration of law set forth in the ■ statement. Whitaker v. Whitaker, 157 Mo. 354. (2) The trial court erred in admitting the hearsay evidence of George E. Avery and other witnesses concerning the declarations of George W. Avery as to the hedge being the boundary line between him and Heynbrock, Sr. (a) Not a single one of these declarations was made while pointing out the hedge as such boundary line; or in disparagement of the Avery claim, (b) Not a single one of these declarations was made in the presence of testator, Heynbrock, or his widow, the plaintiff, or made under oath, (c) These declarations, if made, were by a party directly interested in enlarging his own private boundary, and not by a disinterested party to establish a boundary line of public interest, nor were they traditionary; hence, they constitute rank hearsay. Railroad v. View, 156.Mo. 618; 1 Green. Evi. (15 Ed.) section 145; Hunnicut v. Peyton, 102 U. S. 363; Elliott v. Pear], 10 Pet. 181; Ware v. Brookhouse, 7 Gray, 454; Long v. Colton, 116 Mass. 415. (3) It will be remembered defendant testified that when he bought the adjacent land on the east side the cultivation did not extend to the hedge but to the public road which was on the east of the hedge. Also grant of thirty foot public road by Louis Cook, defendant Hormann grantor.

      Chiles <& Chiles and Aull é Aull for respondent.
    (1) Declarations by parties in possession of real estate under claim of ownership', made while in such possession, are admissible to show the character of possession and claim under the Statute of Limitations. Bank v. Barber, 198 Mo. 470; Swope v. Ward, 185 Mo.’ 325; Whitaker v. Whitaker, 175 Mo. 1; Turner v. Belden, 9 Mo. 792; Mylar v. Hughes, 60 Mo. 105; Railroad v. View, 156 Mo. 618; Barrett v. Donnelly, 38 Mo. 494; Martin v. Bonsack, 61 Mo. 559; Crawford v. Ahmes, 103 Mo. 88; Mississippi County v. Vowels, 101 Mo. 225; Davis, v. Broswell, 185 Mo. 576; Dunlap v. G-riffity, 146 Mo. 283; Harper v. Moore, 114 Mo. 325; Railroad v. Clark, 68 Mo. 374; Burgert v. Borchert, 59 Mo. 87; Thomas v. Wheeler, 47 Mo.’ 363; State to use v. Schneider, 35 Mo. 533; 1 Gr. Ev. (15 Ed.), see. 109; Wigmore, Evidence, secs. 1777 and 1778. Appellant objects to the evidence showing statements of George W. Avery to various witnesses while he was the owner of, and in possession of the premises, made while on said premises, and offered in evidence to show the character of his possession and the adverse claim under the Statute of Limitations. The evidence was clearly admissible for the above purposes as frequently decided by this court. None of the objections made' in appellants brief are tenable but appellant is not in position to press such objections here. The objection made in the trial court is: “The conversation was not made there with or in the presence of William Heynbrock or any of the plaintiffs.” “No such objections were lodged below and hence may not be considered here.” Bragg v. Co., 192 Mo. 342; O’Neill v. Kansas City, 178 Mo. 100; St. Louis v. Railroad, 248 Mo. 10. (2) Ten years open, notorious, continuous, adverse possession, under claim of ownership, with intention to claim title to the land, is sufficient. It is not necessary or essential, in order that the Statute of Limitations. should begin to run, that actual notice of the claim should be brought home to the title owner. Swope v. Ward, 185 Mo. 316; Williamson v. Eilers, 114 Mo. 245; Scruggs v. Scruggs, 43 Mo. 142; Miller v. Rosenberger, 144 Mo. 300; Darsh v. Crane, 109 Mo. 323. This is not a . case where the possession was, at first, permissive in ■character, but one where the possession, in its inception, was adverse. Swope v. Ward, 185 Mo. 316; Lumber Co. v. Jewell, 200 Mo. 707; Williamson v. Brown, 195 Mo. 333. (3) One who holds land by open, continuous, notorious, adverse possession, for ten years, ■obtains an indefeasible fee simple title thereto as effectually as through title acquired by deed. Myers v. Schucmann, 182 Mo. 159; Scannell v. County, 161 Mo. 606; Kirton v. Bull, 168 Mo. 622; Franklin v. Cunningham, 187 Mo. 196; Ekey v. Inge, 87 Mo. 493; Bank v. Evans, 51 Mo. 335; Ridgeway v. Holliday, 59 Mo. 444; Bledsoe v. Simms, 53 Mo. 305; Sherwood v. Baker, 105 Mo. 472; Long v. County, 107 Mo. 298; Barry v. Otto, 56 Mo. 177; Dalton v. Bank, 54 Mo. 105; Hamilton v. Boggess, 63 Mo. 233; Allan v. Mansfield, 82 Mo. 688; Wall v. Shindler, 47 Mo. 282; Nelson v. Broadhack, 44 Mo. 596; Warfield v. Lindell, 38 Mo. 561; Blair v. Smith, 16 Mo. 273. (4) The trial of this case was before the court, without a jury, and at the close of all the evidence and argument, and, after a consideration of all the evidence, the court, in declaration one, for defendant, declared that “ under the law and the evidence in this case, the plaintiff cannot recover, and the finding of the court should be for the defendant.” ‘ This declaration announced no more than the finding of the court, and cannot be said, either to have misled the court, or to have withdrawn from its consideration any testimony adduced on the trial. Stone v. Spencer, 77 Mo. 361; Kansas City v. Askew, 105 Mo. App. 87. Neither of the above eases have ever been criticised or overruled. The citation of appellant, with excerpts from"the case tried before a jury, do not militate against the above. The appellant requested the court to grant a similar declaration, on the part of appellant, as follows: ‘ ‘ The court declares the law to be that upon the pleadings and the evidence the finding must be for the plaintiff.” "Which the court refused. Whether we consider this standing on the same theory, or, inviting the same action of the court, it clearly shows that the appellant at the time occupied that position. (5) Under the record it is clearly shown that the court made its. finding on the law and the evidence, duly considered all the evidence, heard argument of counsel thereon, and rendered its finding accordingly. This, regardless of the above declaration. But if it could be considered error, appellant at the time occupied the same position. Crum v. Crum, 231 Mo. 626; Sepetowski v. Co., 102 Mo. App. 121; Berthold v. Co., 165 Mo. 311; Christian v. Ins. Co., 143 Mo. 467; Rourke v. Railroad, 221 Mo. 62; Smart v. Kansas City, 208 Mo. 204; Soldaniels v. Railroad, 23 Mo'. App. 516; Nagel v. Co., 104 Mo. App. 444; Gordon v. Pary, 219 Mo. 611; Thrope v. Railroad, 89 Mo. 650; Holmes v. Braidwood, 82 Mo. 610; Phelps v. Salisbury, 161 Mo. 14; State ex rel. v. Co., 94 Mo. App. 196; Cady v. Coates, 101 Mo. App-. 152; Dodge v. Knapp, 112 Mo. App. 528. The finding of the court is as conclusive, on appeal, as the verdict of a jury. Magee v. Burch, 108 Mo. 341; Morton v. Steele, 125 Mo. 190; Eohey v. Gordon, 133 Mo. 426; De Lassus v. Faherty, 164 Mo. 361. (6) If a division line be taken and considered by the adjoining proprietors as the true line, and the party possessing the land up to said line claims it as his own, it makes no difference how the line is made, whether by mistake or otherwise; the possession is adverse. Stumpe v. Kopp, 201 Mo. 112; Schwartzer v. Gebhardt, 157 Mo. 99; Kincaid v. Dormey, 51 Mo. 552; Majors v. Rice, 57 Mo. 381; West v. Railroad, 59 Mo. 510; Hamilton v. West, 63 M6. 93; Dee v. Nachbar, 207 Mo. 680; McCabe v. Bruere, 153 Mo. 1; Porter v. Gaines, 151 Mo. 560. (7) An agreement, as to tbe boundary, may be shown by facts and circumstances. And, in determining the facts, long acquiescence and recognition of the line by the parties and their privies become very important factors. Schwartzer v. Gebhardt, 157 Mo. 99; Emistine v. Gleason, 137 Mo. 591/ Stumpe v. Kopp, 201 Mo. 112.
   GRAVES, J.

— Action in ejectment for a strip of land in Lafayette county, Missouri, thus described in the petition:

“Beginning at the northeast corner of the west half of the northwest quarter of the northwest quarter of section twenty-three, township forty-nine, range twenty-four, running thence south along the line between the west half and the east half of said northwest quarter of the northwest quarter of said section to the southeast corner of said west half of said northwest quarter of said northwest quarter of said section, thence west twenty-four and 11-100 (21.11) feet thence north to a point twenty-nine feet west of the said beginning point thence east twenty-nine feet to the beginning. ’ ’

The petition is the ordinary one for actions in ejectment, laying ouster as of January 2, 1905, and asking damages in the sum of $300, and alleging rents and profits at ten dollars per month. Originally the plaintiffs were Mary Heynbrock and her six children, but before judgment the court permitted the children to retire from the suit, and the wage of war was then between Mary Heynbrock, the very aged widow of William Heynbrock, deceased, and the defendant Hormann.

The answer upon which trial was had is short, and had best speak for itself. The material portions read:

“Defendant for amended answer to the petition of plaintiffs admits that he was on the 2nd day of January, 1905, and still is in the possession of the strip of land described in said petition, bnt denies that the said strip was or is any part of the west half of the northwest quarter of the northwest quarter of section twenty-three, township forty-nine, range twenty-four and denies each and every other allegation of the said petition of plaintiffs.
“For further answer to said petition and defense to this action this defendant alleges that he and those under whom he claims have had the actual, exclusive, adverse, continuous, lawful and peaceable possession of the strip of land sued for and in controversy herein for forty years and more next before the commencement of this action under claim of title and claiming the title thereto, that the defendant is the true and lawful owner thereof and of the title thereto and. as such owner was during said time and still is in the lawful possession thereof.
“For still further answer to said petition and defense to this action the defendant alleges that no action has accrued to the plaintiff nor to those under whom they claim within ten years, next before the commencement of this action.
“Wherefore the defense prays that he be hence discharged and that he recover of the plaintiffs the ■costs of this action.”

Upon trial had before the court, without the intervention of a jury, there was entered a judgment for the defendant in this language;

“Now at this day come the parties herein, by their respective attorneys, and defendant also comes by his attorneys, and leave is granted plaintiffs to strike from the petition all of the names of the plaintiffs except plaintiff Mary Heynbrock, Sr., and the court being now sufficiently advised in the premises, doth find the issues for the defendant and against the plaintiff, Mary Heynbrock, Sr. It is therefore ordered, adjudged and decreed by the court that the plaintiff take nothing by ' her writ, a.nd that the defendant have and recover of said plaintiff his costs and charges herein expended, and that execution issues therefor.”

Erom this judgment the plaintiff has appealed. In the record is this stipulation as to the condition of the title in 1858:

“It is agreed by the parties hereto that the paper title to the west half of the northwest quarter of the northwest quarter of section twenty-three township forty-nine, range twenty-four, Lafayette county, Missouri, was on April 3d, 1858, in William Heynbrock, Sr.
“It is further agreed that the paper title to the west half of the southwest quarter' of the northwest quarter section twenty-three, township forty-nine, twenty-four, Lafayette county, Missouri, was in the said William Heynbrock, Sr., on the 15th day of April, 1858.
“It is agreed that the paper title to the east half of the southwest quarter of the northwest quarter of section twenty-three, township forty-nine, range twenty-four, was vested in George W. Avery February 27th, 1854, and the east half of the northwest quarter of the northwest quarter of section twenty-three, township forty-nine, range twenty-four, was vested in George W. Avery, November 15, 1865.”

By his last will, William Heynbrock (W. Heinbrock, as it appears in the will, but taken in the trial as the same party) gave to the wife and widow a life estate in the lands first mentioned in the above stipulation, with remainder over to the children. The evidence of the county surveyor tended to show that the strip of land in dispute was a part and portion of the land described in the first part of the stipulation above set out. Tlie defendant holds title through Avery as mentioned in the latter part of the stipulation, supra. For defendant the evidence tends to show an agreed division line "between Gorge "W. Avery and "William Heynbrock made in the early sixties, and that according to this agreed division line, the strip in controversy belongs to the Avery tract, of which defendant is now owner, and not to the Heynbrock tract. The evidence for the defendant also tends to show open, notorious and hostile possession for a great number of years— much more than the statutory period of ten years. Other matters in detail will be given in the course of the opinion, in connection with the points urged before ns. This sufficiently outlines the case.

I. The plaintiff’s first assignment of error is thus couched in the brief:

“The court committed error in admitting illegal and incompetent evidence on the part of the defendant against the objections and exceptions of the plaintiff.”

The exact situation is best presented by just what was done by the trial court. When a witness, George E. Avery, was on the stand, for the defendant, he testified that his father had always cultivated the land up to a certain hedge fence, and that the Heynbrocks on the other side of the fence likewise cultivated up to the same fence. Other proof in the case fixes this condition of affairs for a great length of time, i. e., thirty-five to forty years. Counsel for defendant undertook to have young Avery detail what his father said about the hedge fence being the line between him and Heynbrock. At first the court sustained the objections of plaintiff’s counsel to such evidence, but thereafter the following occurred: “Hon. William Aull, counsel for the defendant: We offer on behalf of the defendant to show by the witness that during the time that his father was in possession of the Hormaim and Stockman farms, inclosed as stated in his; testimony, Ms father, on the premises, stated to him. several times that this hedge which has been referred to, was planted by himself, and Mr. William Heynbrock,, the father of the plaintiffs, and the husband of the plaintiff, Mary Heynbrock, in this case; that George-W. Avery the father of the witness, furnished the-plants for the hedge, and Mr. Heynbrock and the father of the witness planted the hedge, and that at the time the hedge was planted it was agreed between them that that should permanently be the line between the two farms.

‘ ‘ The Court: You can prove that last statement. ’r
“Hon. Alexander Graves, counsel for the plaintiffs: We object to the offer to prove on behalf of the defendant, because the conversation was not made there with or in the presence of William Heynbrock or any of the plaintiffs.
“The Court: The objections are overruled.
“To which.ruling of the court) the plaintiffs, by their counsel, then and there duly excepted.
“Q. State to the court what your father saidT A. My' father said that the hedge was the line and that it was the agreement between the two families as long as they should live that that should be the line; they said it did not make any difference what the survey showed — it should be the line; that was what he told me in making the old survey; he said it was the agreement that the hedge should be the line. ’ ’

Defendant then followed up tMs lead with several other witnesses, who testified to like effect — one witness saying that the plaintiff herself at one time had said that it would make no difference what a survey (then being made) might show, the hedge fence was the line agreed upon. It is to this evidence that the plaintiff objects, and assigns its admission as reversible error. The record shows that all of these statements of Mr. Avery, thus shown in evidence, were made by him on the farm, and whilst he was in the possession of the farm, and cultivating the land upon his side right up to this hedge. In so cultivating up to the hedge for all these years, he was cultivating the strip of ground now in controversy. Was this evidence as to what Avery said competent for any purposes of the case? Defendant urges that it was and plaintiff’s views are contra.

In determining the propriety of this evidence the fact that the elder Avery was at the time in possession of and cultivating the ground to the east of this hedge, and thus cultivating the very strip of ground now in controversy, must not he overlooked. Not only so, hut plaintiff and her grantor had full knowledge of such fact. Counsel for plaintiff cites and largely relies upon the opinion of Gantt, P. J., in K. C. & Atl. Ry. Co. v. View, 156 Mo. l. c. 618, whereat it is said:

“Plaintiffs complain that the court excluded certain statements alleged to have been made by the various occupants that they were in possession under leases from Darton.

‘ ‘ That a declaration of a party in possession may be admitted to show a claim of adverse possession is true, but the distinction is well marked in this State between a declaration disclaiming title, in other words, a declaration against interest and one in favor of the declarant; the former is admissible, but the latter is-not. [Turner v. Belden, 9 Mo. 797; Darrett v. Donnelly, 38 Mo. 492; Morey v. Staley, 54 Mo. 421; Mylar v. Hughes, 60 Mo. 111; Martin v. Bonsack, 61 Mo. 559.] The effect of prior possession under color of title by admissions of the various occupants that they held under Darton, was but an attempt to show title by statements in favor of Darton and not adversary to their rights. It was pure, simple hearsay, and was properly excluded.”

We will not discuss this View case again. It was. thoroughly reviewed by this court in the later case of Swope v. Ward, 185 Mo. l. c. 325, whereat we said:

“It is claimed, however, that Ward was a mere squatter in the first instance, and that his declarations to third persons cannot raise his right as. a squatter to a fee simple title to the land, and that in order that the Statute of Limitations should begin to run in his favor it is essential that actual notice of his claim to the land should be brought home to the title owner.
The chief infirmity in this contention is that Ward was not a mere squatter. He entered into possession in the beginning under a claim of ownership, with an intention to claim the land. His entry was, therefore, an ouster of the legal possession in the plaintiffs or their grantors, arising from the title. It was in no sense a permissive entry or possession and was not begun in subordination to or recognition of the title of the plaintiffs or of any one else, but was adverse in its inception. The rule of law as to the notice necessary to be given where the possession begins in subordination to the title or possession of another, therefore, has no application in this case.
“It is said, however, that there are two conflicting lines of cases in this State that have been running along together, one of which, illustrated by the cases of Turner v. Belden, 9 Mo. 797, and Railroad v. View, 156 Mo. l. c. 618, is that declarations of one in possession, to third persons, which are in derogation of the right of possession or which cut down the title, are admissible, as admissions against interest, but that when such declarations tend to sustain or enlarge the apparent interest of the person in possession, they are mere self-serving declarations, and therefore are inadmissible; and the other line, of which Darrett v. Donnelly, 38 Mo. l. c. 494, and Whitaker v. Whitaker, 175 Mo. 1, are illustrative, is that such declarations are admissible, when title by limitation is relied on, because they tend to explain the character of the possession.
“But when properly understood .there is no such conflict between those cases. Mere verbal declarations of a person in possession, made to either third persons or to the owner of the record title, cannot create a conveyance, or elevate the rights of a squatter into a fee simple title. Titles to land are not created by mere verbal declarations. But while this is true, it is likewise true that in all cases where title by limitation- — • that is, title by operation of law — is relied upon, it is necessary for the person in possession to prove that his possession was under a claim of right, claim of ownership, claim of appropriation and, therefore, was a hostile claim, as it has been indifferently called. [1 Am. & Eng. Eney. Law (2 Ed.), 846.]
“This being true and this being one of the elements to be proven in a claim of title by limitation, the verbal declarations of the person in possession are admissible to show the character of the possession and to show the intention with which the possession was originally taken. Such declarations do not constitute title.. They are really evidence tending to prove one of the elements of title necessary to be proved in cases where title by limitation is relied on. Where the possession is not visible or actual, such declarations, by themselves, would be wholly insufficient. But where tíre possession is visible and actual, so as to furnish the owner of the title ocular evidence of acts of proprietorship by the person in possession, such declarations when taken in connection with such acts of proprietorship tend to prove the intention of the person in possession and also that the possession is under a claim of right.
“Of course the general rule of law as to all contracts or acts of a party is that admissions against interest are admissible, and that mere self-serving declarations are inadmissible, but this rule is not violated in admitting in a case involving the possession of real -estate, where title by limitation alone is relied on, statements of the person in possession that he claimed a right to the possession or to the land. It would he a solecism to say such a party was required to show that the possession was under a claim of right, and to say that evidence that he had asserted such a claim of right was inadmissible. It is contended, however, that such a claim of right must be brought home to the title-owner. To so hold would be equivalent to holding that the claim of right required under the rule is synonymous with a notice to the owner, and if such had been the meaning of the rule the term notice would have been employed instead of the term claim of right.
“In Whitaker v. Whitaker, 157 Mo. 342, evidence that the party in possession had said he had acquired the interest of his brothers and sisters was properly held to be inadmissible, for an interest could only be acquired under the Statute of Frauds by an instrument of writing. Whereas, upon second appeal in the same case (175 Mo. 1) it was held that declarations of the party in possession that he owned the land, were held" to be admissible ‘as going to show the character of his possession, and therefore to sustain the plea of ten years’ adverse possession.’ These cases illumine the difference between self-serving declarations and a claim of right which is necessary to be shown in cases of title claimed by limitation.
“The evidence of such claim in this case was, therefore, properly admitted in connection with and explanatory of the possession, and the acts of ownership done by Ward on the land.”

We can add nothing to the foregoing full review of the View case, and the proposition of law involved in this case. So, too, in the later case of Bank v. Barbee, 198 Mo. l. c. 469, Burgess, P. J., said:

“Plaintiff, over the objection of defendants W. L. and Martha J. Barbee, was permitted to introduce in evidence statements of the defendant W. 0. Barbee,, made in the absence of his co-defendants, the said W. L. and Martha J. Barhee, that they had delivered to him a deed to the premises in. controversy. The objection to this testimony was upon the ground that it was mere hearsay, and inadmissible in favor of plaintiff, who is privy in estate with the defendant W. 0. Barbee.
“It is well settled that the declarations of a person in possession of property are not admissible as evidence in his favor, or of those claiming under him, to show title in him. [Turner v. Belden, 9 Mo. 797; Watson v. Bissell, 27 Mo. 20; Darrett v. Donnelly, 38 Mo. 492; Morey v. Staley, 54 Mo. 421; Railroad v. Clark, 68 Mo. 371; Railroad v. View, 156 Mo. 608.] But it is equally well settled that the declarations or admissions of one in possession of property explanatory of his possession, as that he holds it in his own .right, or as tenant or trustee of another, are admissible in evidence, because explanatory of his possession. [Darrett v. Donnelly, supra; Railroad v. View, supra.] It is clear from these authorities that the statements of W. 0. Barbee, under consideration, were inadmissible against his co-defendants for the purpose of showing title in himself. They were, however, admissible as tending to show that his possession was adverse under the Statute of Limitations: and the judgment should not be reversed upon the ground of their admission;
“In Martin v. Bonsack, 61 Mo. l. c. 559, it is said: ‘The tendency of recent adjudications is to admit explanations of a possessor of property as to his‘title, not with a view to set up such title, but to show whether his possession was adverse under the Statute' of Limitations, or otherwise. All the evidence in the case tended to show that Mrs. Lee’s possession was hostile to all the world, and not as dowress or tenant for life. This question was left to the jury by the instructions, and they found for plaintiffs.’
“That case was cited with approval and quoted from in Mississippi County v. Vowels, 101 Mo. 225, in which it was also expressly ruled that such evidence was admissible. The Statute of Limitations was one of the issues involved in this case, and the judgment of the court may have been, and probably was, bottomed upon the theory that W. 0. Barbee’s possession was adverse to all others for more than ten years before the institution of this suit.”

In this last above cited case the plaintiff bank was claiming under W. 0. Barbee, and makes the case parallel to the one at bar. It should also be noted that Judge Burgess who wrote the opinion and Judge Gantt, who concurred therein, were on the same bench when the View case, supra, was written by Judge Gantt, and further that they in this last case refer to the View case. Going now to a case from the other division of the court, we find that in Mississippi County v. Vowels, 101 Mo. l. c. 228, Brace, J., thus states the rule:

“There was no error in the admission of the declaration of Vowels, deceased, that he had purchased the land; ‘The tendency of recent adjudications is to admit explanations of a possessor of property as to his title, not with a view to set up such title, but to show whether his possession was adverse under the Statute of Limitations or otherwise.’ [Martin v. Bonsack, 61 Mo. 556,]”

Cases and text-writers almost ad infinitum, might be cited along this line. Such declarations are not admitted to prove title, but where the Statute of Limitations is invoked they are properly admitted to show the character of the possession. The trial court committed no error in the admission of this evidence, and with this out of the case there is but little left in the appeal.

II. This is an action at law, tried before the conrt without the intervention of a jury, and in such cases the findings by the conrt upon the disputed facts stand here as does a verdict of a jury. This proposition is so well settled that it needs no citation of authorities.

There was strong evidence in this record from which the conrt could have well found for the defendant upon the grounds of adverse possession for much more than the statutory period, and if the judgment is predicated upon that ground, we cannot disturb it. Further, although the judgment is a general one in its terms, yet when there is one substantial ground upon which it could be rendered, we should not disturb it, because the trial court will be presumed to have predicated his finding and judgment upon such established ground of recovery or defense. The evidence being sufficient to justify the judgment upon the ground of adverse possession for the statutory period, other matters of error must be sought, or such judgment should stand.

III. It is next insisted that the court erred in giving the following declaration of law: “The court declares that under the law and evidence in this case the plaintiff cannot recover and the finding of the court should be for the defendant.”

This court has passed upon this exact question. In Stone v. Spencer, 77 Mo. l. c. 361, we said:

“The declaration of law made by the court at defendant’s instance, is complained of. If the issues of fact had been tried by a jury the instruction would have been erroneous in taking the case from them by the court, but the issues of fact were submitted to the court, and the instruction announced no more than the verdict found, and cannot be said either to have misled the court or to have withdrawn from its consideration any testimony adduced on the trial. If the law and the evidence warranted the verdict, then this instruction simply declared that the court should do what it ought to have done without any such declaration of its duty. The declaration does not indicate that the court applied any erroneous principle of law to the case. The instructions given for plaintiffs show the theory of the law upon which the court proceeded. ‘Where the case is submitted to the court for hearing, declarations of law are generally of but little use, except.to show the theory on which the case was tried. ’ [Cooper v. Ord, 60 Mo. 431.]”

The declaration of law held in judgment in the Stone case reads:

‘ ‘ The court sitting as a- jury declares the law to be, that defendant, upon the pleading's and evidence herein, is entitled to recover from plaintiffs and their sureties, upon their bond given herein under the provisions of section 3, chapter 166, of the General Statutes of Missouri, the value of the property taken out of his possession herein, with his damages and costs in his behalf sustained.”

Discussing a similar declaration of law, the Kansas City Court of Appeals, in Kansas City ex rel. v. Askew, 105 Mo. App. l. c. 87, said:

“The trial being before the court without a jury, the instruction given was no more than an announcement by the court that, in its opinion, the law and the evidence required a finding for defendant. By such declaration the court did not withdraw from itself a consideration of any part of the evidence. [Stone v. Spencer, 77 Mo. 356.] It is said in that case that if the issues of fact had been submitted to a jury, the instruction would have been improper, but not so, when submitted to the court.”

This contention of the appellant must therefore be ruled against her.

IY. The third and last assignment of error is that the court erred in refusing plaintiff’s second, third and fourth instructions. These instructions we have examined and are of opinion that there was no error in the refusal of them. An examination of this record leads us to the view that the trial court reached a correct judgment upon the facts, and such judgment is affirmed.

All concur.