text:
    The State, Respondent, v. Devlin, Appellant.
    ¡1..One A, was put upon Ms trial for an alleged misdemeanor; after the evidence on both sides was closed, the court refused to submit the case to the •jjiecy as requested by A., and against objection on his part called the next ea$g(,pn the docket, being a case of misdemeanor, and empanneling the same juryiteaxd the evidence in the same, and submitted both causes to the same jury atítire same time. Held, that the court committed error.

      Appeal from Si. Louis Criminal Court.

    This was a prosecution for an assault and battery originally instituted before a justice of tlie peace. Tlie cause was taken by appeal to the St. Louis Criminal Court. The defendant, diaries Devlin, was put upon bis trial in the Criminal Court, and evidence having been given on both sides, the case was closed. Tlie court then called the next case on the docket, which was a case of misdemeanor, and the same jury was sworn in said second cause. Devlin objected to tliis course of proceeding, and insisted that he had the right to have the jury retire and consider of their verdict in his case before having another submitted to them. The court overruled tbe objection. Evidence was beard in tbe second canse, and tbe two canses were submitted to tbe same jury, upon instructions, at tbe same time, and they retired to consider tbe several causes submitted to them. They returned separate verdicts.

      A. J. P. Garesché, for appellant.

      C. G. Mauro, (circuit attorney,) for respondent.
    I. Tbe Criminal Court committed no error in submitting both cases to tbe jury at the same time. It was a matter of discretion with that court, and this court will not interfere unless it is apparent that injustice has resulted from it. Both cases were misdemeanors, and tbe court below, to save time and costs to tbe county, tried and submitted them to tbe same jury at tbe same time. No injustice was done the appellant, because tbe lowest punishment was imposed upon him. The evidence shows clearly that an offence bad been committed by him.
   Ryland, Judge,

delivered tbe opinion of tbe court.

This was a prosecution for an assault and battery. There was a trial by a jury, and a verdict against tbe defendant. The record shows that after tbe testimony in this case was closed, tbe court called tbe nest case on tbe docket, being for a misdemeanor, against another defendant, and the testimony in this last, case being also finished, tbe jury were then instructed as to the law in this case against Devlin. This course of proceeding was objected to by tbe defendant, Dev-lin, who insisted that bis case should be first submitted to tbe jury and be determined before any other matter should be submitted to tbe same jury. In this we think the defendant was right, and for the irregularity in this matter tbe judgment below must be reversed. This may be looked upon as a small matter, and that tbe irregularity might have done injury to either party; but it is nevertheless an irregularity which this court must not allow. If we begin in this manner to sanction such a proceeding, we can not tell when or where it may end. It is the right of the accused to have his case tried by a jury free from any improper bias. This trial must be in its nature a single matter, and the court has no right to impose on the defendant and his counsel the necessity of waiting and listening to a different prosecution for a different offence; and has no right to draw the attention of the jury to a new and different prosecution before the first one submitted to them is determined.

This is a dangerous precedent, and it requires condemnation at once. Irregularities begin at first by degrees, and are tolerated because no perceivable injury has followed the first step. But the best method is not to sanction one so new, and which may lead to such consequences as the one here complained of. The judgment below is reversed alone on the ground of the irregularity here mentioned. The other judges concurring, the judgment will be reversed, and the cause remanded.


source: Caselaw Access Project

author: Hyland, Judge,

license: Public Domain

text:
    The State, Respondent, v. McDonald, Appellant.
    1. Ia the case of an indictment for adultery, the declarations and admissions of the defendant are competent evidence to prove that he was a married man at the time of the alleged adultery.

      Appeal from St. Louis Criminal Court.

    This was an indictment for adultery. Upon the trial the State, to prove the marriage of the defendant, Robert McDonald, at the time of the alleged adultery, offered the declarations of defendant, made before and after the alleged adultery, to the effect that Rebecca McDonald was his wife, and that he had intermarried with her in the state of Pennsylvania. The court admitted these declarations against the objection of defendant. The court gave the following instruction to the jury: “ If you believe that defendant acknowledged a woman named Rebecca McDonald to be his wife and lived with her as such, this is competent evidence of his marriage for your consideration; and if from these circumstances you are satisfied beyond a reasonable doubt that defendant was lawfully married to the said Rebecca, you should find the fact of his marriage for the State.” The following instructions asked by the defendant were refused: “ Mere evidence of cohabitation of the defendant with Rebecca McDonald, and his holding her out to the world, is no proof of marriage ; and unless the jury have other evidence of marriage, they should acquit. In a case of this character marriage can only be proven, 1st, by persons who were present at the marriage; or, 2d, by the certificate of marriage, or the record evidence of the same ; that in a prosecution for adultery, marriage can not be proven by the admission of the defendant.” Other instructions were given and refused. It is unnecessary to set them forth.

      N. McDonald, for appellant,
    I. The court erred in refusing the instruction asked by defendant. Though there are some decisions to the effect that in prosecutions for bigamy, adultery, &c., the confessions of the defendant are sufficient to establish the fact of marriage, the preponderance of opinion is the other way. (See R. C. 1845, p. 730 ; Whart. O. L. 759 ; Morris v. Miller, 4 Burr. 2057 ; Birt v. Barlow, Dougl. 171; 1 Selw. N. P. 14;. 3 Black. Com. 140 ;1 Carr. & Kir. 164; 2 Wils. 399 ; Leader v. Barry, 1 Esp. 353 ; Commonwealth v. Little-john, 15 Mass. 163 ; Commonwealth v. Norcross, 9 Mass. 492 ; People v. Humphrey, 7 Johns. 314 ; Fenton v. Reed, 4 Johns. 53; The State v. Roswell, 6 Conn. 446 ; Kerby v. Rucker, 1 A. K. Marsh. 290; 15 Mass. 168 ;. 7 Greenl. 57; 8 id. 75 ; Swift’s Digest, 501; Arch. C. P. 475; Jackson v. People, 2 Scam. 231.)

      H. A. Glover, for the State,
    cited Morgan v. The State, 11 Ala. 289 ; State v. Hilton, 3 Rich. S. C. 434; Mary Norwood’s case, 1 East.-; Commonwealth v. Werner, 2 Ya. Oas. 95; State v. Britton, 4 McCord, 256 ; Commonwealth v. Murtagh, 1 Ashm. 272 ; Forney v. Hallacher, 8 S. & R. 160 ; 16 Ohio, 178 ; Cook v. The State, 11 Georg. 53.
   Hyland, Judge,

delivered the opinion of the court.

• This was an indictment against Robert McDonald for adultery. He appeared to the indictment and pleaded “ not guilty.” There was a trial, and the defendant was convicted. He moved for a new trial, which being denied, he brings the case here by appeal.

The only question for our determination is, whether defendant’s confession that he was married was competent evidence. On the trial below, the State, to prove the marriage of defendant at the time of the alleged adultery, &c., offered the declarations of the defendant, made before and after the alleged adultery, to the effect that the said Rebecca was his wife, and that he had intermarried with her in the state of Pennsylvania. The defendant objected to the introduction of such evidence as incompetent to prove a marriage in fact; but the court overruled the objection, and let in the evidence. The defendant saved the point, and this is the only question in the case.

Greenleaf, in his treatise on evidence, (1 Greenl. Ev. § 215,) says: “ Subject to these cautions in receiving and weighing them, it is generally agreed that deliberate confessions of guilt are among the most effectual proofs in the law.” “ Their value depends on the supposition that they are deliberate and voluntary, and on the presumption that a rational being will not make admissions prejudicial to his interest and safety, unless when urged by the promptings of truth and conscience.” In the same treatise, (2 Greenl. Ev. § 45, tit. Adultery,) it is said: “ As to proof by the confession of the party, no difference of principle is perceived between this crime and any other. It has already been shown that a deliberate and voluntary confession of guilt is among the most weighty and effectual proofs in the law.” In Oayford’s case, 7 Maine, 57, it was held that in an indictment for lewd cohabitation, adultery or bigamy, the prisoner’s confession of the fact of his marriage is sufficient proof of tlie fact. In this case, Mellen, O. J., said : “ Nothing is more clear than that proof of the voluntary confession of a man, on trial for adultery or lascivious cohabitation, that he is guilty of the crime charged, is legal evidence, and, in the absence of controling evidence, is abundantly sufficient; and the reason why his confession, that he was a married man at the time of committing the offence charged, should not be good also is not very apparent.” In Morris v. Miller, 4 Burrow, 2057, Lord Mansfield said that “ In case of bigamy, as well as in crim con., it is essential to prove marriage in fact as distinguished from the acknowledgment of the parties. The cases however are different. In the civil action the plaintiff demands damages which he has no right to recover unless there has been a legal marriage between him and the woman with whom the defendant is charged to have committed the adultery ; and in such a case the confession of the defendant, who may be a total stranger to the marriage, will amount only to an acknowledgment of a marriage by reputation. In that light the court viewed the confession of Miller as to the alleged marriage between Mr. and Mrs. Morris. But in a prosecution against a man for bigamy, adultery, or lascivious cohabitation, the confession of the defendant is of a different character. It is the confession of one who must certainly know whether the fact confessed is true or false.” Justice Buller, speaking of the case of Morris v. Miller, says : “ The evidence of the defendant’s confession was not sufficient, for it was only a confession of the reputation that she went by the name of the plaintiff’s wife, and not a confession of the marriage.” “ This case, instead of proving that a full and voluntary confession of the marriage was not sufficient to prove it, seems clearly to justify a different conclusion, and such a conclusion Phillips has drawn.” (Buller’s N. P. 28; 2 Phill. Ev. 211.) Phillips says, speaking of Morris v. Miller: “ This decision does not warrant the conclusion that a distinct and full acknowledgment of the marriage, made by (defendant himself, will not be evidence of the fact against him, and sufficient to dispense with the more formal and strict proof of marriage.” In Rigg v. Curgenvan, 2 Wilson, 399, where the case of Morris v. Miller was cited, it was said by the court that, “ if it were proved that defendant had seriously recognized that he knew the woman to be the plaintiff's wife, it would be evidence proper to be left to the jury without proving the marriage.” East, in his Pleas of the Crown, 471, speaking of this acknowledgment by a defendant, says : “ With respect to such evidence of a bare acknowledgment, it may be difficult to say that it is not evidence to go to the jury like the acknowledgment of any other matter in pais, where it is made by a party to his own prejudice at the time.” In Regina v. Simmons, 1 Carr. & Kir. 164, it was held that the first marriage may be proved by the admissions of the prisoner in a prosecution for bigamy. In Jacob Warner v. The Commonwealth, 2 Virg. Cas. 95, the acknowledgment of the husband that he is married, and his cohabitation with the woman as his wife, are proper evidence of the first marriage in a prosecution for bigamy in Virginia. In this last case, the cases of Morris v. Miller, and Birt v. Barlow, Dougl. 172, are commented on and considered not to be contrary to this doctrine. In South Carolina, on a trial for bigamy, the -first marriage may be proved by the declarations of the defendant and evidence of cohabitation. (State v. Hilton, 3 Rich. 434; The State v. Britton, 4 McCord, 256.) In Alabama similar confessions are admissible. (Morgan v. State, 11 Ala. 289.) In Ohio, on an indictment for bigamy, the admissions of the defendant as to a prior marriage, may be given in evidence to prove the fact of such marriage. (16 Ohio, 173.) In this case the cases of People v. Humphrey, 7 Johns. 314, Morris v. Miller, Birt v. Barlow, State v. Roswell, 6 Conn. 446; were cited in the argument. In Georgia admissions of the defendant as to the fact of his marriage are admissible in evidence. (Cook v. State, 11 Georg. 54.) This case was decided in 1852, and many of the cases upon the same subject arp reviewed. The cases from Massachusetts and New York and Connecticut are noticed by the court; also those from Pennsylvania. In Commonwealth v. Murtagh, 1 Ashmead, 272, the confessions of the defendant, in a prosecution for bigamy, are held to be adequate evidence of the marriage. In Forney v. Hallacher, 8 Serg. & Raw. 160, in an action of crim. con., the declaration of the defendant, that he knew A. B. was married to the plaintiff and that with full knowledge of that fact he had seduced her affections and debauched her, may be given in evidence in proof of the marriage. Oh. J. Hibson said: “ The question is supposed to depend on. the authority of Morris v. Miller, in which it is held that proof of actual marriage was requisite iii contradistinction to proof of cohabitation, reputation and other circumstances, from which a marriage might be inferred. That case, for every thing decided in it, is good authority; for nothing is more ■ certain than that to support an action for criminal conversation there must have been an actual marriage. But it is quite another thing to say that such a marriage shall be proved only by the oath of an eyewitness to the marriage ceremony. We at once feel the good sense of the rule that excludes the mere representation of marriage which always arises from the declarations or acts of the plaintiff himself; but how a defendant’s unqualified and positive acknowledgment of a marriage in fact can be excluded on any principle or rule of evidence, I am at a loss to discover.”

I have not considered it necessary to comment on or to notice in this opinion the various decisions against this evidence. I have examined .the cases referred to in New York, Massachusetts, Connecticut and' Kentucky. Upon a full examination of the authorities, both elementary and of decided cases, we are unanimously and clearly of the opinion that such evidence is competent. The court therefore committed no error in receiving it; nor in refusing the instructions asked for by defendant in regard to it. Let the judgment be affirmed ; the other judges concurring.


author: Scott, Judge,

text:
    McNair et al., Appellants, v. Lott et al., Respondents.
    1. To extinguish or bar an equity of redemption, -where lapse of time alone is relied on, twenty years must have elapsed since the last recognition of the mortgage.
    2. A demurrer should he resorted to to raise the defence of the statute of limitations, if at all, only where it clearly appears that the plaintiff's case has been fully stated, and that being so stated no recovery can be had.
    3. A., in the year 1819, to secure the repayment of a loan of money, executed an instrument in the Trench language in the form of a Trench hypothecation and containing the words, “ oblige', engage, ollientí, affecté et hypothequé: held, that this was a mortgage within the act of October 21), 1807, concerning mortgages. (1 Terr. Laws, p. 182.)

      Appeal from St. Louis Land Cowrt.

    Demurrer to a petition. Plaintiffs state in their petition substantially that in the year 1819, the late Ool. Charles Dehault Delassus was the owner and proprietor of, and as such had possession of, a certain tract of twenty arpens, known as survey No. 332, in the name of Joseph Brazeau; that af-terwards said Charles became indebted to Baptiste Douchou-quette and Marie Thereso Brazeau, in the sum of $4000, for money loaned him, for which he agreed to pay each at the rate of ten per centum per annum until paid; and to secure the payment of one-half of said sum to each, he did on the 7th day of January, in the year 1819, execute and deliver to each of them his four several promissory notes, each for the sum of $200, due and payable on the 20th December, in the years 1819, 1820, 1821, and 1822, with interest on each at the same rate from maturity ; that he at the same time made and delivered to each a deed of conveyance, in the nature of a mortgage, of and to said tract of land, which said deeds had conditions that in the event said Charles paid the sum of $2000 to each on or before the 20tli of December, 1823, with interest, the said deeds were to become inoperative, and said interest notes not due were to be delivered np and canceled; that said deeds and notes were signed and sealed, and were written in the French language; were accepted and were duly recorded ; that in the year 1819, by written agree-meat made between said Baptiste and Marie, the former was vested with power to manage her estate, and at her death became absolute owner thereof; that he assumed such management during her life and at her death owned and claimed her property, including the debt due as aforesaid ; that the first interest note due said Marie was paid and canceled; that the one first due said Baptiste was reduced by credits to fifty-five dollars; that afterwards the remainder of said indebtedness being due and unpaid, said Baptiste, in the name of himself and said Marie respectively, instituted proceedings in the Circuit Court of said county — one to foreclose the equity of redemption of said Charles under said deeds and sell said lands — the other by action of assumpsit to obtain judgments for said debts clue each as aforesaid; that at the July term of said court, 1824, without service of process, judgments were rendered in favor of each for the sale of said land on a particular day named ; also for the principal and interest due each and secured by said deeds in the actions of assumpsit; whereby each obtained judgments in two forms of proceedings in the same court, at the same time, for the same debt due each as aforesaid ; upon each of which judgments executions issued in 1824, and were not executed but returned by order of plaintiffs to clerk’s office. Afterwards, in 1827 — said Charles then being a resident of the state of Louisiana, and said judgments unsatisfied — said Baptiste, with the knowledge of one Theodore D. Papin, his agent and son-in-law, caused a fi. -fa. to issue against said Charles (then absent) on the judgment in assumpsit in his name, and the said tract or survey levied on, and all the right, title, estate, &c., of said Charles therein sold subject to all prior judgments and decrees ; that said Papin became the purchaser at the bid of $1050 ; that before and at the time of said levy, sale and purchase by Papin, said tract of land was in the actual possession, use and enjoyment of the said Baptiste in virtue of said mortgage deeds ; that Papin, with full knowledge of all the above facts in regard to said judgments and land, and knowing that his said purchase was void and inoperative, did, on the 19th day of December, 1827, purchase of said Baptiste and Marie their right and estate in said tract of land, and received possession- thereof, and a deed of conveyance thereof; that afterwards said Marie died and by the said agreement made with said Baptiste, in 1817, her interest in said judgments passed to and became vested in him ; that in 1834 said Baptiste made his will, constituting said Papin and bis son Baptiste Douchouquette, executors thereof, and then died ; that said will was duly proved ; that said Papin and Baptiste the son assumed on themselves, in due form of law, the execution thereof; that afterwards, on the 16th of December, 1836, said Charles paid to the executors the full amount of each of said judgments or debts secured by said deeds of mortgage; that as evidence thereof Papin and Douchouquette, as executots, in the vacation of said Circuit Court, in the presence of the clerk thereof, did on the minutes or record of each of said judgments enter on the margin of each an acknowledgment of “ full and entire satisfaction,” which acknowledgment was signed by them and attested by the clerk, whereby said Charles became released from said judgments; that from neglect or ignorance they failed to enter a like acknowledgment in the margin of the record of said deeds of mortgage in the recorder’s office; that they failed to execute a deed of release of said land as required by law; that said Papin had assigned and transferred his right to the use and possession of said land, excluding said mortgage debts, to one William T. Phillips, who entered and took possession of the same with full knowledge of all the before recited facts in regard to said land; that after the payment of said judgments, in 1836, said Charles returned to his home in the state of Louisiana and there died intestate, leaving Augustus Delassus, his only child, heir and legal representative, who did not come to the knowledge of his right and claim to the land until 1848 ; {various deeds of conveyance are here set forth from said Augustus Delassus to plaintiffs ;] and the plaintiffs charge and aver that the execution, under which said Papin purchased said land in 1827, issued on a judgment for the identical debt due said Duchouquette, and to secure the payment of which said deed of mortgage was executed by said Charles in 1819, and none other; that the same was in due form of law paid and satisfied in 1836 — all of which was known to said defendants and each of them at the time they entered and took possession of said land ; that said defendants, and each of them and those under whom they claim parts of said land, entered and took possession of the same under the right and title of the said Charles, and none other; that they now refuse to surrender possession thereof and release their claim, although requested so to do ; that said defendants, and each of them, and those under whom they claim, and hold parts of said land, entered and took possession thereof as trustees by deeds of assignment from said mortgagees, Baptiste and Marie, to Papin and from him to said Phillips as aforesaid; that the sale and purchase under said execution by Papin, was a fraud on the rights of said Charles, and the deed executed by the sheriff as evidence thereof was inoperative and void; that should said sheriff’s deed to Papin be considered valid and operative to pass the fight of said Charles to redeem said land, then plaintiffs charge that the payment of said mortgage debts and judgments by said Charles, in 1836, did vest in him all the right of said mortgagees, Baptiste and Marie, to subject said tract of land to the payment of said debts in the possession of defendants, assignees of said Papin, as before stated ; that since said land was surveyed, in 1836, there has been much accretion thereto on the river front by deposit and other causes, all of which is the property of plaintiffs, and is now claimed by defendants as assignees of said Papin ; that no part of the rent of the said tract has been accounted for to the said Charles in his lifetime or since his death, to his son and legal representatives or plaintiffs; nor has the said sum of $10,693.28 paid by said Charles, in 1836, to the executors of Douchouquette, or any part thereof, been refunded to him, his said son, or plaintiffs. Wherefore plaintiffs pray that defendants, and each of them, be compelled to surrender to plaintiffs said land and the accretions thereto, as now held and claimed by them, and by proper deed release all right thereto as derived from said Papin; or, that said land be subjected to the payment of said two mortgaged debts paid by said Charles, in 1836, with interest thereon, to-wit, said sum of $10,693.28 ; that plaintiffs be restored to the possession and quiet enjoyment of said land and all accretions thereto, with a reasonable compensation for the rents and profits of said land, and damages, <fec., and for such other and further relief, &c.
    This petition was filed in the St. Louis Land Court Feb. 22,1856. The defendants demurred to the petition, and set forth as grounds of demurrer that the petition does not state facts sufficient to show a cause of action; that there is a defect of parties plaintiff; also of parties defendant; that all the parties appearing to be interested and through whom the defendants severally claim title, are not made parties defendant ; that the petition is multifarious in various respects; that it does not show that all the parties claim through a common source of title, nor does it show of what specific land either of defendants stand seized or possessed, nor who is seized, nor through whom they or either of them claim title ; that plaintiffs do not show what specific relief they are entitled to, nor do they show that they are entitled to any relief; nor do they show how they claim general damages against all the defendants jointly, when it appears that each defendant is entitled in his own right; also that the prayer for judgment is incongruous and inconsistent in claiming the possession of the land or the payment of the amount of the mortgage debt.
    The demurrer was sustained.

      Gales and Buckner, for appellants.
    I. The petition is not multifarious. All persons who have a real interest in the subject matter — title and possession of the land — are before the court.
    II. The facts stated in the petition present an equitable cause of action not prejudiced by lapse of time. 1st. In virtue of sheriff’s sale and deed to Papin, no right or title passed ; but, on the'contrary, was void and inoperative. (2 Burr. 969; 2 Johns. Oh. 130; 7 Dana, 66; McNair v. O’Fal-lon, 8 Mo. 203; Robertson v. Campbell, 8 Mo. 616; 12 Mo. 117.) 2d. The deeds of assignment from the mortgagees to Papin, and from him to Phillips, and from him to respondents, vested no right or claim, other than to hold the naked possession of the mortgaged land subject to the redemption of Delassus. (2 Sto. Eq. 1019-23 ; 2 John. Ch. 129 ; 14 Pick. 331; 17 Mass. 419, 289 ; 1 Hill on Mortg. 163 ; 9 Mo. 280 4 Johns. 43.) 3d. The payment of the mortgage debts, in 1836, to the executors of Duchouquette, and satisfaction thereof entered on the records of the judgments, was notice to respondents of such payment, whereby their right to possession ceased. 4th. As no evidence of payment was entered on the margin of the record of the mortgage deeds or release executed, as required by law, the remedy of appellants is in equity, in order to reclaim possession, and, at the same time, quiet their title. (2 Burr. 978 ; 17 Mass. 419; 10 Mo. 229 ; 1 Terr. Laws, p. 46; R. C. 1826, p. 410, § 15; R. 0. 1835, p. 340, § 18 & 22.) 5th. Until 1836, Delassus ■ or his legal representatives had no right of entry or cause of action. Hence lapse of time has not operated to their prejudice before or since that period. 6th. As respondents, and those under whom they claim, are mere tenants or quasi trustees, limited and subservient to the relation of mortgagor and mortgagee, they are precluded from protection by lapse of time in a court of equity. 7th. Whether any title in the equity passed to Papin, or whether payment of mortgage debts was properly made'to him or not, still, under all the circumstances and facts of this case, lapse of time does not operate against appellants. (See 2 B. Monr. 206 ; 9 Wheat. 498 ; 2 Hill, on Mortg. 1-12; 2 Mo. 94.)

      B. A. Hill, R. M. Field, G. Gibson and Whittelsey, for respondents.
    I. The statute of limitations is a complete bar to the relief sought, no disability being shown to have existed when the right to redeem first accrued or.descended. The laches bars all claim, and may be relied upon on demurrer. (Taylor v. Blair, 14 Mo. 437; Smith y. Clay, 3 Brown Ch. 640 ; Dema-rest y. Wyncoop, 3 John. Ch. 129; Kane v. Bloodgood, 7 John. Ch. 93; Provost v. G-ratz, 6 Wheat. 481; Hughes v. Edwards, 9 Wheat. 489 ; Willison y. Matthews, 3 Pet. 44; Piatt y. Nattier, 9 Pet. 416 ; Elmendorf v. Taylor, 10 Wheat. 168; Miller v. McIntyre, 6 Pet. 67 ; Hunt v. Wickliffe, 2 Pet. 212; 5 Pet. 493; Bollinger v. Chouteau, 20 Mo. 90 ; Biddle y. Mellon, 13 Mo. 335 ; Keeton’s heirs v. Keeton, 20 Mo. 531.)
    II. In order to redeem, all parties in interest must be made parties to the bill. Only a portion of those interested against the plaintiffs are made parties to the case at bar.
    III. If Papin could ever have been regarded as a trustee for the plaintiffs, the purchase of the land at sheriff’s sale, and entry thereunder upon the land claiming the same as his own, was an open and notorious disclaimer of the trust, and the statute commenced running from that time. (20 Mo. 530; 20 Mo. 488; id. 89.) After the conveyance in 1831 to Phillips, Papin could not in any way affect the rights of his own vendee. Having parted with all his rights to the property in 1831 to persons who in 1836, when he settled with Delassus, were holding adverse to him and Delassus, his power over the property was gone.
    IY. The instrument claimed to be a mortgage is not a mortgage, but a French hypothecation, passing no estate in the land, being a mere pledge of the land to secure the debt; and being a mere lien on the land, it was lawful for the same to be sold under the judgment in assumpsit, and the sale to Papin, who at the time held no interest in the land, passed the title.
    Y. The claim is stale. The settlement between Delassus and Papin took place December 16,1836. The petition in this case was filed February 2, 1856, within a few months of twenty years from date of the settlement. (See Taylor v. Blair, 14 Mo. 437.)

       The following is the hypothecation to Duchouquette : “ Sachent tous ceux qui ces presentes verront que moi, Charles Dehault Delassus, du comté de St. Louis, Torritoire du Missouri, pour prix et en consideration de la somme de deux mille liuit cent piastres, que je declare bien et legitimement devoir et promets de Men et duement payer a Baptiste Duchouquet, du dit comté, comme suit savoir, deux cent piastres au vingt Décembre prochain, deux autres cent piastres au vingt Décembre suivant, deux autres cent piastres au vingt Dé-cembre encore suivant, deux autres cent piastres au vingt Décembre encore suivant, pour lesquollcs sommes j’ai consentí, au dit Baptiste Duchouquet mes billets endatte du jour de la datte des presentes, et enfin la somme de deux mille piastres au vingt Décembre de Fanned mil liuit cent vingt trois, le tout pour valeur recue; pour sureté et payement de la dite somme de deux mille liuit cent piastres, j’ai engage, alliené, aifecté et hypothequé, comme de fait et par oes presentes j’engage, allieno, affecte et hypotheque, une terre seize et situeé a environs un mille au sud de la ville St. Louis, sur laquelle je reside, ayant deux arpens front au Mississippi et courantvers l’ouest jusqu’au chemin qui conduit de cette ville a Carondelet, borneé au súd par Bernard Pratte, et nord par la terre conceded a Joseph Brazeaux, a present défunt, etant la memo terre que j’ai acquiso de Theodore Hunt et Anne, son épouse, ainsi qu’il est constaté par acte enregistré en 1’office du Recorder de ce comté, livre P pages soixante-treize et suivantes; de plus affectant, allienant, engageant et hypothe-qu’ant également la juste demie ou moitié d’une terre de dix mille arpens seize et situeé sur une des branches de la riviere a Renau qui tombe dans la grande riviere qui perd ses eaux dans la riviere Marameck, et h environs cin-quante cinq milles a l’ouest nord ouest de Ste. Genevieve, bornée du cote du nord et de l’ouest par des terres vacantes, du cote du sud par les térros des habitans de la Mine a Breton, et du coté de l’est par un branche de riviere qui perd ses eaux dans le riviere Marameck, la quelle demie ou moitiéj’ai acquise de Pierre Chouteau et Brigette, son epouse, par acte de ce jour; promettant, m’obligeant, et m’engageant de ne vendre, engager, alliener ou affecter la dite proprieté avant le payement final des sommes cy dessus et aux termes y expliqués sous peines de toute nullilé et de tous dépens, dommages et interets.. II me sera cependant loisible, en tel terns que soit avant le vingt Décembre de mil huit cent vingt trois, d’obtener mainleveé du present hypotheque en remboursant et payant au dit Baptiste Duchouquet, ou a son representante la sus dite somme de deux mille piastres, avec interet a raison de dix pour cent a compter dujour du vingt Décembre precedent le dit remboursement et payement; et aujour du dit payement et remboursement le dit Baptiste Duchouquet, ou son repi’osen-tant, me remettra les billets cy dessus mentionnés qui resteront a echeoir. En foi de quoi j’ai signé et scellé ces presentes a St. Louis ce sept Janvier de F anneé de Notre Seigneur mil huit cent dix-neuf. [Signed] Charles Dehault Delassus, [seal.]”

       A motion for a rehearing in this cause was made by R. M. Rield in behalf of defendants. The motion was overruled.

   Scott, Judge,

delivered the opinion of the court.

In cases where the statute of limitations would be a bar to an action at law, if the remedy is pursued in chancery, equity following the law requires the same length of time, as a de-fence by way of limitation, that is required in the action at law. As between mortgagor and mortgagee, when time alone is relied on as a bar, twenty years is the shortest period prescribed by law as a limitation to an ejectment; so the same period is adopted in equity as a defence to a bill to redeem. When other defences are set up, time may be a circumstance in support of them ; but as a bar of itself, it must be for at least twenty years from the last act recognizing the relation of mortgagor and mortgagee. The period within which an action at law must be brought being prescribed by statute, if the remedy is sought in a court of chancery, the same limitation must be observed, and courts of equity will not permit a party to abandon the statutory bar, and relying on a shorter period set up as a defence to the relief sought by the bill the staleness of the demand.

The theory of this action is, that Papin was the person to receive the mortgage debt, and having received it within a period short of twenty years, the statute of limitations furnishes no defence to the relief sought by the plaintiffs. The petition states that Papin had assigned and transferred his right to the use and possession of said land, excluding said mortgage debts, to one Wm. T. Phillips, who entered and took possession of the same with full notice of all the before recited facts in regard to said land. This needs explanation, and it can only come by way of answer. If Phillips took with notice of the mortgage, should not the acts and conduct on his part and the part of his alienees, direct and indirect, be proved, which would show that he held adversely to it, and claimed by virtue of the sheriff’s sale in 1827. So late as the time of Lord Redesdale it was thought that the defence of .the statute of limitations could not be taken advantage of by a demurrer; and though the law has been since otherwise settled, yet it is obvious that such a mode of using the statute of limitations should only be employed, if at all, where it plainly appears that the plaintiffs’ case is fully stated, and it is clear that he can not recover. The parties have framed their petition on a theory which would not admit of a defence growing out of the statute of limitations by way of a demurrer, and therefore it can not be expected that they would state by way of anticipation in their petition the facts which would repel such a defence. It is clear that a defence arising out of the statute of limitations could not be used by way of demurrer to an action at law. All distinction between actions is now abolished. Shall then the rule that prevailed in actions at law be adopted, or that which obtained in courts of equity ? Or shall the distinctions between actions at law and suits in equity be kept up in order to ascertain when the de-fence growing out of the statute of limitations shall be a plea or demurrer ? If considerations of convenience are to determine this question, there can be but little doubt that the rule at law will be preferred.

The main point relied on in support of the demurrer is, that the instrument of mortgage or that by which the lien was created was a French hypothecation, and is not within the statute of 20th October, 1807, concerning mortgages in force at the time ; consequently, that there is nothing to prevent the land on which the lien was given from being sold by virtue of an execution on a general judgment for the debt secured by the hypothecation. Without stopping to inquire whether land, in the situation supposed, could be effectually sold on a general judgment for the debt secured by the lien, we will consider the proposition made in support of the demurrer. In doing this, it must be borne in mind that the statute under consideration was enacted before the introduction of the common law; that the then territory had but a few years previously been a French colony, and contained many French inhabitants speaking the language and employing the forms of instruments in evidencing their contracts which were in use among that people. Under such circumstances, it is reasonable to suppose that the general assembly, in legislating on the subject, would have an eye to the contracts of the French as well as to those of the American population. The language of the act shows that the legislature was aware of the state qf things under which it was acting. The words are, “ any person holding an instrument in writing purporting to he a mortgage,” &c. The original words of the instrument in the clause of alienation, are “ ohligé, engagé, aliené, afecté et hypothequé.” These, under our law, would be sufficient to convey a title. The other parts of the instrument sufficiently show that an hypotheque was intended, which is the French word for a mortgage. A title is conveyed, and it appears from the body of the instrument that it was passed as a security for a debt. Is not that the very thing contemplated by the act ? The parties designate it by a word which we in our language translate “ mortgage.” The language of the instrument shows that it was designed for the purpose which is intended by a mortgage under our law. There is no reason why one, who makes an instrument like that under consideration, should not have all the advantages to be derived from a formal mortgage under our law. In executing a French hypotheque nothing more or less was intended than what is contemplated by a mortgage. The two instruments then should receive the same favor from the law.

As this cause will be remanded, we will make a suggestion or two which may be of some service in its future progress. It does not appear whether the sum received by Papin in 1886 from Governor Delassus was the entire mortgage debt, or whether it was the balance due after deducting the sum of $1050 made by a sale of the lot in dispute in 1827; whether Delassus, in paying the amount in 1836, supposed he was paying the balance of the debt due, considering the mortgaged lot as sold and passed away from him, or whether he paid under the belief that he was relieving all the mortgaged property from the incumbrance. We would know whether the omission to enter satisfaction on the judgments of foreclosure had its cause in the consideration that Delassus was only paying tbe balance of a debt, and that the mortgaged lot haring been sold he was no longer concerned about it. Without pretending that the answers to these suggestions will be decisive of the case, we can not but think that satisfactory answers to them might throw some light upon it.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded;

Judge Leonard absent.


author: Ryland, Judge,

text:
    Shepard, Appellant, v. Martin & Getzendanner, Respondents.

    1. An affidavit in a proceeding against A. and B. under the “Act concerning landlords and tenants in the county of St. Louis/' (R. C. 1845, Appendix, p. 1101,) which states a lease by plaintiff to A. and a demand of rent due of B., the person occupying the premises, is not rendered defective by reason of its not charging any privity between plaintiff and B., or by its not stating that the relations of landlord and tenant existed between the plaintiff and B. ("Willi v. Peters, 11 Mo. 395, affirmed.)

      Appeal from St. Louis Land Cowrl.

    The facts sufficiently appear in the opinion of the court.

      S. A. Holmes, for appellant.
    I. The affidavit is in strict conformity to the requirements of section 3 of the act concerning landlords and tenants in the county of St. Louis. (R. C. 1845, p. 1101; Willi v. Peters, 11 Mo. 395.) It was not necessary to allege that Martin was a sub-tenant of Getzendanner.

      Knox Sf Kellogg, for respondents.

         The opinion in this case was delivered at the October term, 1856, of the Supreme Court. — [Rep.

   Ryland, Judge,

delivered the opinion of the court.

This was a proceeding under the act concerning landlords and tenants in the county of St. Louis. The questions raised are as to the sufficiency of the affidavit, which is in the following form: “ State of Missouri, county of St. Louis, ss. Elihu H. Shepard, being duly sworn, makes oath and says, ■that on the 17th day of March, 1846, he demised to one So-latliiel Getzendanner, for a term not exceeding twenty years, a certain one story brick house situated on a lot fronting on the east side of Fourth street, in the city of St. Louis, in block No. 85 in said city, and which said lot is bounded on the west by said Fourth street, and on the south by land of said Shepard, and is the said lot heretofore leased by said Shepard of John McCausland and wife; also one foot of ground fronting on Fourth street, in said city, and immediately adjoining the former residence of said Shepard, in block No. 85, and running back eastwardly eighty feet, bounded west by said Fourth street, and south by the north wall of the residence formerly occupied by said Shepard, together with the privilege of using the north wall of said dwelling. And affiant further says that by the term of said lease and demise, the said Getzendanner was to render and pay rent for the said brick house, one foot of ground, and tlio use of the said wall, at the rate of two dollars per month, payable quarterly, with the privilege to said Shepard of reentering, if said rent reserved should not be paid within thirty days after the same became due and payable. Affiant further says that the whole of said premises are situated in the Third ward of the city of St. Louis ; that there is now actually due and payable to said Shepard, the landlord, the sum of forty-eight dollars for the rent of said premises up to the 17th day of June, 1854; that more than thirty days have elapsed since the same became due ; that said sum has been demanded of John L. Martin, the person occupying the said premises, and that payment thereof has not been made.”

Upon appeal by the defendant from the justice of the peace, before whom the proceeding was originally commenced, to the St. Louis Land Court, the defendant, Martin, at the March term, 1855, of that court, filed his motion to dismiss the case because the affidavit did not state that the relation of landlord and tenant existed between the plaintiff and defendant Martin, because no privity between the parties was alleged, and because tlie affidavit contained no sufficient description of tlie premises sought to be recovered. This motion the court sustained, and dismissed the cause, which action is assigned for error here.

This case is fully within the principle of the decision made by this court in the case of Willi v. Peters, 11 Mo. 396. The judgment below must therefore be reversed, and the case remanded; the other judges concurring.


author: Rvland, Judge,

text:
    Evans, Respondent, v. Muller, Appellant.

    1. An affidavit in a proceeding under tlie “Act concerning landlords and tenants in the county of St. Louis,” (B. C. 1845, Appendix, p. 1101,) -which states that a certain lot was let to M., the defendant, for a term of twenty years at a certain rent; that the sum of $695.50 is now due for the said rent; that the same has been demanded and payment has not been, made, but which does not state of whom defendant leased the lot, or who was his landlord, or to whom he owed the debt due for rent, is defective ; its defectiveness may he taken advantage of by a motion in arrest of judgment.

      Ajjpeal from St. Louis Lcmd Court.

    The facts sufficiently appear in the opinion of the court.

      D. C. Woods, for appellant.

      Jones Sf Shermcm, for respondent.
    I. The affidavit was sufficient. Whatever defect there might have been in it was cured after verdict. (2 R. C. 1855, p. 1256, § 19.)

         The opinion in this case was delivered at the October term, 1856, of the Supreme Court. — [Em>.

   Rvland, Judge,

delivered the opinion of the court.

This is a suit under the landlord and tenant act of St. Louis county. The only question we shall notice is that arising on the defendant’s motion to arrest the judgment be•cause the plaintiff’s affidavit is insufficient. The affidavit is as follows: “ State of Missouri, county of St. Louis, ss. Asa S. Jones, agent for Augustus H. Evans, being duly sworn, on his oath says that Casper Müller is the occupant of a certain lot of ground situate on the east side of Carondelet street, in a fractional block, bounded west by said Carondelet street, north by Wood street, and east by Short street, and south by Washington (now Miller) street; said lot containing thirty feet front on the east side of Carondelet street by one hundred and twenty feet, more or less, in depth, and bounded north by property occupied by Tirmenstein, and south by McShore, being moreover in the first ward in the city and county of St. Louis ; which said lot of ground was let to said C. Müller on the first of August, 1841, for the term of twenty years, at the rate of forty-five dollars per annum, payable semi-annually; and the sum of $695.50 is now due for said rent; and that the same has been demanded and payment has not yet been made. [Signed] A. S. Jones, agent for Augustus H. Evans.”

This affidavit states that defendant leased the lot for twenty years, but does not show from whom he leased, or who was his landlord, or to whom he owed the debt. Must not the affidavit set forth substantially all the facts entitling the party to the relief? If it does not, when on trial all the necessary facts have been proved as appears by the bill of exceptions and judgment rendered for the plaintiff, can the judgment stand or must it be arrested ? This case is not like the case of Willi v. Peters, 11 Mo. 395, or the case of Shepard v. Martin, decided at this term ; for in these cases the affidavit did show substantially a good cause of action. Here is an omission which, in our opinion, is fatal. It is not a mere informal showing of a cause of action — a cause of action in itself good but defectively stated and set forth — but here is no cause set forth in favor of the plaintiff substantially good. The proof will not therefore help it or cure the omission. The judgment .below ought to have been arrested and the suit dismissed. The judgment is reversed. The defect being incurable, the case is not remanded ; the other judges concurring.


author: Soott, Judge,

text:
    Draper, Appellant, v. Shoot et al., Respondents.
    1. A failure to pay a nominal consideration can not he shown to defeat a deed.
    2. What will constitute an adverse possession of land under the statute of limitations must he determined by the circumstances of each ease.
    3. To support and establish such an adverse possession, a less weight of evidence is required where the entry is with, than where it is without, color of title.
    4. The acts of ownership exercised must he visible and notorious, and of such a nature as indicate a notorious claim of property in the land.
    5. In determining the question of adverse possession, the payment of taxes by the person asserting title by adverse possession is a fact that may, with other circumstances, be considered by the jury.

      Appeal from, Marion Circuit Court.

    This was an action in the nature of an action of ejectment to recover possession of lot No. 3, in block No. 11, in the city of Hannibal. It was commenced August 16, 1851. Plaintiff claims title under one Abram Bird. The lot in controversy is embraced in a tract of 640 acres patented to the said Bird or his legal representatives. The patent bears date December 1st, 1824. The city of Hannibal is located upon said tract of 640 acres. The defendants insist that a portion of the Bird title has enured to them. It is conceived unnecessary to set forth fully the facts upon which this enure-rnent is claimed to rest. The defendants also rely upon the statute of limitations as a bar to the entire action. The facts, so far as they bear upon this defence, are as follows: In the years 1818 and 1819 there was a company known as the “ Hannibal Company.” It was composed of Moses D. Bates,' Stephen Rector, Thomas C. Rector, William Y. Rector, Richard Gentry and Thompson Bird. The Hannibal Company laid out the town of Hannibal. In the year 1819, Moses D. Bates, acting for said company, made a public sale of lots in the town of Hannibal. The lot in controversy was sold by said Bates to one Robert Masterson. No deed .was executed and delivered to said Masterson by Bates. The consideration of the sale to him was his building upon the lot. By a deed dated April 15, 1819, four members of said company— Stephen Rector, William V. Rector, Richard Gentry and Thomas C. Rector — conveyed said lot to Masterson by the following deed of conveyance: “ This indenture, made and concluded this fifteenth day of April, 1819, between Thomas C. Rector, Stephen Rector, William Y. Rector, Moses D. Bates, Thompson Bird and Richard Gentry, all of the territory of Missouri, of the first part, and Robert Masterson, of the county of Pike, and territory aforesaid, of the other part, witnesseth, that the said parties of the first part, for and in consideration of the sum of one dollar (and being the first improver) to them in hand paid or secured to bo paid, as hereinafter specified, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said party of the second part, his heirs and assigns forever, a certain lot or parcel of land situate, lying and being in the town of Hannibal, county of Pike, and territory of Missouri, known and distinguished on the plat of said town by lot number three, of block number eleven, as by reference to the plat of said town: to have and to hold the said lot and premises, with the appurtenances, unto the said party of the second part, his heirs and assigns forever; provided always, nevertheless, that whereas, the said party of the second part has this day made, executed and delivered to the said parties of the first part three several notes, bearing equal date with these presents, to secure the payment of the consideration aforesaid in the manner following — that is to say, one for the sum of 33J cents, to be paid in six months, after the date thereof — one for the sum of 33J cents, to be paid in twelve months after the date thereof, and one for the like sum, to be paid fifteen months after the date thereof: now the condition of this indenture is such, and it is understood and agreed between the parties aforesaid, that the described lot and premises shall be and is hereby mortgaged and pledged to secure tha said several sums of money in the said notes respectively specified, and every and all of them; and if the the said party of the second part shall not well and truly pay or cause to be paid unto the said parties of the first part the said several sums of money in said notes specified, or any or either of them, according to the tenor and effect of the said notes respectively, then and from thenceforth this present indenture and the estate hereby conveyed or granted shall cease, determine and become absolutely null and void to all intents and purposes, and the said lot and premises, and all the estate, right, title and interest of the said party of the second part, of, in and to the same, shall be and the same is hereby assigned, transferred and relinquished to the said parties of the first part, their heirs and assigns forever, any thing before herein contained to the contrary notwithstanding. In testimony whereof, the said parties of the first part have respectively set their hands and affixed their seals the day and year first aforesaid. [Signed] Stephen Rector (seal), William Y. Rector (seal), R. Gentry (seal), Thomas 0. Rector (seal).”
    The title of the Hannibal Company to the site of the town of Hannibal proved defective. After the date of the purchase from said company by Masterson of the lot in controversy, an undivided interest of one-eighth vested in William Y. Rector, one of the parties to the above deed, by virtue of mesne conveyances from the heirs of Abram Bird. It is claimed by defendants that the interest so acquired enured to to the benefit of Masterson and those claiming under him.
    Masterson built a house on the lot in the year 1819. He never occupied it himself. He sold and conveyed it in the year 1822 to Yanlandingham. The evidence tended to show that persons holding under Yanlandingham occupied said house from 1822 until about the year 1882 or 1838, when the house fell or was torn down. A portion of the materials seems to have remained on the premises until a new house was built upon the lot in the year 1839 by tenants of Yanlandingham. There was also evidence tending to show that after the house was deserted some of the logs were sold by Yanlandingham. It was admitted that defendants and Yanlandingham, under whom they claim, were in possession of said lot from 1839— time of building the new house — down to the time of the institution of this suit. The defendants also adduced in evidence the assessor’s books and tax receipts, showing that Yanlandingham had assessed the lot in controversy as his, and had paid taxes thereon to the state and county from 1823 until this suit was brought. The court, on motion of plaintiff, excluded these tax receipts, &c., from the jury.
    The court gave the following instruction asked by plaintiff : “ 5. In order to enable defendants to succeed in their plea of ‘ possession for twenty years,’ they must prove to the satisfaction of the jury that they and those under whom they claim their title have had possession of the lot in controversy for twenty years before the institution of this suit; and they must also believe that such possession was an actual, continued, visible, notorious, distinct and unbroken possession in the said defendants and those under whom they claim; and unless the jury believe from the evidence that such a possession did exist for twenty years before the institution of this suit, they must find as to this issue for the plaintiif Draper.”
    The court gave the following instruction asked by defendants : “ If the jury believe that Stephen Rector, William Y. Rector, Richard Gentry and Thomas 0. Rector sold or gave the lot in controversy to Robert Masterson in the year 1819, and that said Masterson entered into the possession of said lot, claiming it as his own, and held possession by himself and tenants until the year 1822, and then by deed sold the said lot to Yanlandingham, and the said Yanlandingham then entered into the possession of said lot, either by himself or tenant, and that said Yanlandingham and those claiming under him have held possession of said lot adversely to the plaintiff and those under whom he claims until the institution of this suit, they will find for the defendants.” The court, of its own motion, gave the following among other instructions : “ 4. To make good the defence of the defendants under the statute of limitations, the jury must find that the defendants, or those under whom they claim, or their tenants, had actual, continuous, visible possession of said lot, claiming the same adversely to the plaintiff, and those under whom he claims, for twenty years next before the commencement of this suit. This possession is not constructive ; but it 'must have been by occupation or cultivation, or by other acts of ownership which were visible, notorious and continuous. If these facts are found by the jury they should find a verdict for the defendants ; if not, as to this defence the plaintiff should have a verdict.”
    The court refused the following instructions asked by plaintiff : “ 6. If the jury should believe from the evidence that defendants, and those under whom they purchased, claimed the title to the lot in controversy for a period of twenty years prior to the institution of this suit, and paid taxes on and exercised acts of ownership over the same, but that they did not either by themselves or tenants have continuous, actual, and unbroken possession of the lot for the full period of twenty years before this suit, then the jury should find for plaintiff.”
    The jury found for defendants.

      Lamb & Lakenan and Richmond, for appellant.
    I. The defendants failed to show an unbroken possession for twenty years. From 1882 till 183T or 1838 there was no occupancy of the lot; it was not enclosed — never had been; ■the house was torn down ; and the possession was abandoned. Tax receipts can be no evidence of that visible and open possession required to sustain the plea of the statute of limitations. (10 "Watts, 141; Angelí on Limitations, 410, 415, 429 ; 2 Smith L. C. 491; 5 Cow. 219 ; 12 Johns. 867.)

      E. G. Pratt, for respondents.
   Soott, Judge,

delivered the opinion of the court.

As the defendants claimed a portion of the premises in controversy by title, and relied on the statute of limitations as a complete bar to the plaintiff’s action, and there being a verdict against the plaintiff on the whole case, it is obvious that it turned on the statute of limitations, as that was the only defence made to the entire demand. This view of the record will relieve us of the necessity of inquiring into the propriety of the instructions relative to the acts set up by the defendants and alleged by them to confer a title to a portion of the lot in dispute ; for if the statute of limitations is a bar to the entire demand, there can be no need of inquiring whether the defendants had any other defence to a portion of the lot claimed by plaintiff. The instructions given in relation to the statute of limitations were sufficiently stringent against the defendants, as courts have rarely laid down the law more strictly against those relying on the bar of the statute of limitations than was done by the court below. There has been one mis-trial, and two verdicts have passed against the plaintiff on this issue, and it would seem needless to sxibmit the matter a fourth time to the jhxry.

There was evidence on which the verdict of the jury could be vindicated. Although our courts hold that an entry without color of title will enable the party in possession making it to defend, himself under the statute of limitations, yet an entry with a color of title may be supported by a less weight of evidence than a bare entry by an intruder under no claim of right. The person under whom the defendants claim actually performed the condition on which the lot was to become his property. The non-payment of the nominal consideration can not be shown to defeat a deed. (Meriam v. Harsen, 2 Barb. Ch. 267.) The circumstance that the deed was executed only by some of the proprietors is one of no weight, as the evidence abundantly showed that as against them all the original purchasers would have been entitled to a conveyance for the lot. After Mastorson had acquired a right to a title from those under whom he entered, their title failed, and a portion of them subsequently acquired a valid title to a tract on which the town was laid out, and he continued in possession in the manner stated by the witnesses, and never was disturbed by any one until Draper instituted this suit setting up title under a quit claim deed. And it is worthy of observation that it does not appear that Glasscock, under whom Draper claimed and who acquired title long subsequently to the entry of Masterson, ever had a conveyance for the specific lot in controversy, but claimed by a general description conveying a largo tract alleged to include the premises in dispute. The town existed only on paper; to invite settlers lots were granted on condition that they should be improved. The first title having failed, and some of the first proprietors subsequently becoming owners of a valid title, they may have been unwilling that the first bona fide settlers should be disturbed, or their sense of justice may have recognized the claim of Masterson.

As the statute proceeds upon the ground of the acquiescence of the owner of the land, visible and notorious acts of ownership must be exercised by the claimant, as otherwise there can. be no ground for such a supposition, when the acts are clandestine or of such a character as can impress no person with the belief that they proceed from a claim of ownership. It is no easy matter to say wliat is an adverse possession. It is a question compounded of law and fact, and every case in which it is involved must be determined by its own circumstances. What is adverse possession is one thing in a populous country, another thing in a sparsely settled one, and still a different thing in a town or village. The law, as stated by the Supreme Court of the United States, in the case of Ewing v. Burnett, 11 Pet. 53, and other cases, seems very appropriate to the circumstances of this case — that to constitute an adverse possession there need not be a fence, building or other improvement made ; and that it suffices for this purpose that visible and notorious acts of ownership are exercised over the premises in controversy for the time limited by the statute ; that much depends upon the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it; that it is difficult to lay down any precise rule in all cases, but that it may be safely said, that where acts of ownership have been done upon land, which from their nature indicate a notorious claim of property in it, and are continued sufficiently long, with the knowledge of an adverse claimant, without interruption or an adverse entry by him ; such acts are evidence of an ouster of a former owner, and an actual adverse possession against him, provided the jury shall think that the property was not susceptible of a more strict, or definite possession than had been so taken and held; that neither actual occupation, cultivation or residence are necessary where the property is so situated as not to admit of any permanent useful improvement, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim.

We do not maintain that the payment of taxes is evidence of an ouster of the true owner; but in a question of adverse possession, which depends on so many circumstances, such payment is a fact to be weighed by a jury in considering it. It would be an argument against one claiming to hold land, that he should for twenty years fail to pay the annual assessments upon it. If unexplained, such omission would certainly weaken the pretence that he claimed the land as his own, as such conduct is contrary to the course of men of ordinary prudence in relation to property to which they set up a claim. The payment of taxes may go to the jury with other circumstances, and this was a case in which such a fact was very appropriate for the consideration of the triers of the fact.

There was no error in permitting evidence to be received respecting the circumstances under which Masterson originally entered into the possession of the lot. There is no doubt that one who enters under an agreement to purchase can not set up the statute of limitations as a bar to an ejectment by the owner. His occupation, under such circumstances, will not be adverse to him by whose permission he entered. But if afterwards he asserts a title hostile to that under which he took possession for a sufficient length of time, with a knowledge of the owner, bis possession will be protected by tbe statute. But this is no sucb case. Masterson did not enter under an agreement to purchase. He shows his deed, not as conferring a valid title, but as evidence that he took possession under color of title.

Judge Ryland concurring,

the judgment will be affirmed ;

Judge Leonard absent.