Opinion
June 21, 1928.
1. QUIETING TITLE: Suit in Equity: Cancellation of Deed. Averments in the suit to ascertain and determine title that plaintiff is the owner of the lots, that a warranty deed purporting to have been signed by her and her deceased husband and conveying the lots to defendant's deceased husband had been recorded, clouding her title, and that she did not sign or execute the deed, and praying for its cancellation, are in effect a charge of forgery or spuriousness, which, with the prayer for cancellation, makes the suit one in equity, triable de novo in this court, including a finding here of the facts.
2. CONVEYANCE: Delivery of Deed: By Husband of Owner. Delivery is essential to the validity of a deed and without it other formalities are ineffectual. But where the owner of lots and her husband signed and acknowledged a warranty deed, which expressed a substantial consideration, and he conducted the negotiations, and there is no evidence as to whether she expressly gave or denied to him authority to deliver it, and none that she thereafter demanded the payment of rent or that any was paid, evidence that almost immediately after the deed was signed and acknowledged the grantee entered into possession and caused the deed to be recorded, and a great length of time elapsed before she instituted her suit to have the deed cancelled, makes a prima-facie case that she authorized her deceased husband to deliver the deed to the deceased grantee.
3. ____: To Facilitate Purposes of Grantee: Good Faith. To impeach a recorded deed, regular on its face and reciting the payment of a substantial consideration, cogent and satisfactory evidence is required. To invalidate it on the ground of lack of good faith in the transaction, it is not enough to show that the purpose of the deed was to enable the grantee to evict a tenant and obtain possession of the lots, without having to pay an additional saloon license, where the transaction was carried on by the owner's deceased husband, and there is a lack of evidence that the grantee ever attorned to her or paid her rent, and there is evidence that the consideration mentioned in the deed was paid.
4. ____: Construed as Mortgage. To construe a deed absolute on its face to be a mortgage or lease, clear and convincing evidence is necessary; and the rule cannot be invoked where there is not even a scintilla of evidence on which to base such a ruling.
5. ____: Fraud and Mistake: Pleading. Although the transaction was carried on by the owner's deceased husband, in order to invalidate her deed on the ground of fraud and mistake the burden of proof is cast upon her, to show that she had no knowledge of the nature of the instrument at the time she signed and acknowledged it, and to show, by satisfactory evidence, a total lack of a valuable consideration, even if she is in a position to impeach the consideration by establishing that the substantial consideration which the deed recites was paid was not in fact paid, and the petition contains an averment of fraud and mistake.
6. QUIETING TITLE: Estoppel: Disclaimer of Ownership: Paying Taxes: Pleading. Conceding, without deciding, that estoppel in pais need not be pleaded, in a suit in equity to ascertain and determine title, where it is inherent in the title or the facts show it, and that the surrender of possession and disclaimer of interest will constitute estoppel, provided they are made with knowledge of his legal rights by the party surrendering and disclaiming, where the other party has expended money for improvements, paid taxes and held possession in good faith under color of title, the concession, if allowable, would not establish title in plaintiff by estoppel, where the evidence does not show that the deceased grantee in plaintiff's deed surrendered possession to her, and the only improvement was a fence of slight value erected on one side of the lots, and the only evidence that he disclaimed any interest in them is incoherent and is refuted by other evidence that he claimed them. The payment of taxes does not of itself constitute estoppel.
7. QUIETING TITLE: Limitations: By Grantor. The grantor may acquire title to lots conveyed by him by holding possession adverse to the grantee for the limitation period. Such possession by the grantor differs from adverse possession originated by another only in that it generally requires stronger proof to establish it.
8. ____: ____: Adverse Possession: Necessary Proof. The burden is upon one asserting title by adverse possession to establish it by proof clearly showing an actual, open, notorious, exclusive and hostile possession for the full limitation period, under a claim of right.
9. ____: ____: ____: Color of Title. Color of title is not an element of adverse possession. Nor is color of title involved where actual possession is not shown.
10. ____: ____: ____: Payment of Taxes. Payment of taxes is evidence of a claim of ownership, but is not evidence of adverse possession.
11. ____: ____: ____: Supervisor by Agents: Occasional Use. The appointment of agents to supervise the lots after the houses thereon were burned, the occasional and casual renting of them to tent shows and carnivals, and permission to churches to place stands thereon, and the erection of a fence on one side to prevent the public from using the lots for a hitching yard, which disintegrated in a few years, and the payment of taxes for more than ten years, do not constitute actual adverse possession, or the ouster of the record owner with the intention of claiming title.
Corpus Juris-Cyc. References: Adverse Possession, 2 C.J., Section 8, p. 58, n. 51; Section 30, p. 69, n. 79; Section 64, p. 82, n. 8; Section 246, p. 143, n. 79; Section 615, p. 274, n. 30; Section 621, p. 276, n. 59. Appeal and Error. 4 C.J., Section 2647, p. 726, n. 17. Deeds, 18 C.J., Section 94, p. 196, n. 17; Section 501, p. 422, n. 87; Section 549, p. 442, n. 5. Estoppel, 21 C.J., Section 269, p. 1252, n. 93. Husband and Wife, 30 C.J., Section 527, p. 851, n. 59. Mortgages, 41 C.J., Section 123, p. 354, n. 62.
Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.
AFFIRMED.
Von Mayes for appellant.
(1) Plaintiff's petition not only sets up a claim of title by adverse possession, but seeks to cancel a deed covering a part of the lots in question, and therefore her suit is one in equity. Canty v. Halpin, 242 S.W. 97; Barron v. Store Co., 237 S.W. 786. (2) Where the true owner has knowledge of the hostile claim of the other party, the possession of the other party to be adverse need not be so open, visible and notorious as to raise the presumption of notice to the world that the right of the true owner is invaded intentionally and with the purpose to assert a claim of title adversely to his. 2 C.J. 75, sec. 57; Missouri Lbr. Co. v. Hassell, 298 S.W. 50; Dausch v. Crane, 109 Mo. 323. (3) It is not always necessary to prove actual occupation by the claimant to establish title by adverse possession, where the acts of ownership are known to the party and known to have been done under claim of adverse title nor is it necessary that the property under such circumstances should be inclosed by a fence or have buildings thereon. Turner v. Hall, 60 Mo. 271; Leeper v. Baker, 68 Mo. 400; Brown v. Brown, 106 Mo. 611; Benne v. Miller, 149 Mo. 228. (4) Where a person under color of title to the whole tract has possession of a part of a tract and pays taxes on the whole tract, this is equivalent to possession of the whole tract. Plaintiff had a deed to the whole of the lots and paid taxes on the whole, and therefore, if she had possession of any part, she had possession of all. Sec. 1309. R.S. 1919: Woodside v. Durham, 295 S.W. 773. (5) A grantor may as against a grantee acquire title by adverse possession. Brown v. Brown, 106 Mo. 611. (6) Delivery of deed by co-grantor without expressed or implied authority from the other grantor is void as to the other grantor. The plaintiff never authorized her husband to deliver the deed in question. Dallas v. McNutt, 249 S.W. 35; Meador v. Ward, 260 S.W. 106. (7) An absolute deed may be construed to be a mortgage or lease. Stephens v. Stephens, 232 S.W. 979. (8) Lack of consideration will defeat a deed where there is any fraud or mistake in the transaction. The evidence shows nothing was to be paid for the property and nothing was paid for the property, and the deed was obtained as to the plaintiff without her knowledge of its nature, if she signed it, from which mistake or fraud may be inferred. Chambers v. Chambers, 227 Mo. 262.; 18 C.J. 162. sec. 42; 8 R.C.L. 971, sec. 43. (9) Estoppel in pais need not be pleaded when part of the title, or where the facts in issue show estoppel. 21 C.J. 1246, secs. 255, 256; Bryant v. West, 219 S.W. 359; Bernero v. Trust Co., 287 Mo. 602. Surrender of possession and disclaimer will constitute estoppel, when the other party expends money on improvement of the property or pays taxes thereon for a long time and holds in good faith under color of title, and such surrender and disclaimer is made with knowledge of the legal rights of the party disclaiming. 21 C.J. 1168, sec. 174.
Ward Reeves and Russell Oates for respondents.
(1) The plaintiff's theory upon which the case was submitted to the trial court, is embodied in her only requested declaration of law, which the court gave. The plaintiff cannot be heard in this court on any other or different theory than that contained in her said requested instruction. Robinson v. Ramsey, 190 Mo. App. 206; Falvey v. Hicks, 286 S.W. (Mo. Sup.) 385. (2) The only question submitted to the trial court by the plaintiff's given instruction was the question of adverse possession, and the burden of proof being upon the plaintiff on this issue, and that question having been determined by the trier of fact, adversely to the plaintiff, the finding of the trial court will not be disturbed. Schnare v. Austin, 106 Mo. 610; Union Trust Company v. Hill, 283 Mo. 278; Falvey v. Hicks, 286 S.W. (Mo. Sup.) 385. (3) The plaintiff offered a declaration of law, which was given by the court. The plaintiff thereby abandoned every other theory as a ground of recovery, except the one of adverse possession submitted in her only requested instruction, and appellant is precluded from urging in this court any equitable ground of recovery, which she abandoned below; and as the only question on the theory below upon which plaintiff submitted her case, was purely one of law, as distinguished from equity, and one upon which the plaintiff had the burden of proof, the finding thereon by the trial court, sitting as a jury, precludes a review of the evidence on this appeal. Robinson v. Ramsey, 190 Mo. App. 206: Union Trust Company v. Hill, 283 Mo. 278: Falvey v. Hicks, 286 S.W. (Mo. Sup.) 385; Morrison v. Bonner, 195 Mo. 535. (4) There was no contention either by pleadings or evidence at the trial that the deed was not delivered to the grantee. The case was not tried or submitted to the court upon the theory that such a question was in the case. Besides, the deed was produced and offered in evidence by defendant and it was recorded a few months after its execution and more than eleven years before the institution of this suit. Appellant offered no evidence to rebut the presumption that the deed had been delivered; whereas, such evidence to overcome such presumption involved by the possession and recordation of the deed must be so clear and convincing as to remove all reasonable doubts. Chambers v. Chambers, 227 Mo. 283. (5) There was no allegation of fraud or mistake in plaintiff's petition, nor was there any proof of either, nor was the case submitted on such theory. Such matters must not only be proven, but must be pleaded. Strong v. Whybark, 204 Mo. 348: Jackson v. Wood, 88 Mo. 76: Nauman v. Oberle, 90 Mo. 666; Taylor v. Crockett, 123 Mo. 300. There was no substantial evidence in the case that the deed to defendant's husband was without consideration. The recited consideration is $2500, and want of consideration cannot be shown for the purpose of defeating the operative words of the deed. Strong v. Whybark, 204 Mo. 346: Wells v. Kuhn, 221 S.W. (Mo. Sup.) 19. The evidence, when considered in the most favorable light to the plaintiff, does not show such continued uninterrupted possession for a period of ten years as required by law. Brown v. Hartford, 173 Mo. 191. (a) Payment of taxes on land cutting timber thereon, and protecting it from trespassers, do not constitute possession, but are merely acts tending to show claim of ownership. Pharis v. Jones, 122 Mo. 125. (b) The evidence shows that the plaintiff had no color of title whatever to the fifty-two feet in controversy, but she had conveyed same to the defendant's husband by a warranty deed. Her possession or acts of ownership, if any, over the balance of said lots, would not start the Statute of Limitations running as to the fifty-two feet, even though there were acts of ownership exercised over the fifty-two feet. As to the fifty-two feet, to which the plaintiff had no color of title after she made her warranty deed on May 27, 1913, the plaintiff's possession thereof must be actual, and she could not claim beyond the limits of her actual possession. Sec. 1309. R.S. 1919; Pharis v. Jones, 122 Mo. 125; Campbell v. Brown, 146 Mo. App. 324; Wilson v. Purl, 148 Mo. 449. (6) There is no estoppel which can be urged in this court. The plaintiff made no valuable improvements on the property in controversy, and if she exercised acts of ownership after she parted with the title, she did not commit these acts in the belief she was still the owner. She had made her solemn deed of conveyance, and she must be presumed to know that she parted with her title and had none when she exercised her alleged acts of ownership over the fifty-two feet. After the conveyance was made, the assessment for taxes continued thereafter on the lots as a whole, and plaintiff continued to pay all the taxes thus assessed. But this voluntary payment of taxes will not estop the rightful owner from asserting title to the property. Kellogg v. Moore, 271 Mo. 189. The alleged acts of the defendant and her husband relied upon by the plaintiff as working an estoppel, cannot be invoked by the plaintiff. She had parted with the title by a solemn warranty deed, and it was duly recorded. She then is conclusively presumed to have known of this title being in the defendant's husband, and will not be allowed to avail herself of an estoppel when she knew or had the same means of knowledge as did the defendant and her husband. DeLashmutt v. Teetor, 261 Mo. 412. Estoppel can never be relied upon to give or create a cause of action, and can only be invoked to preserve rights already acquired and not to create new ones. Berry v. Bonding Co., 221 S.W. 751.
This is a suit to ascertain and determine title to real estate, commonly known as a suit to quiet title. From a decree rendered by the court in favor of defendant, plaintiff appealed.
The petition avers that plaintiff owns and possesses lots 17 and 18 in block 28 of the original town of Hayti, Pemiscot County; that defendants claim some interest therein by virtue of a warranty deed purporting to have been signed and executed by plaintiff but denied by her, which was a voluntary conveyance on the part of her husband without consideration. It further avers title in plaintiff by adverse possession, praying the court to ascertain and determine the title and to set aside and cancel the warranty deed, and for general relief.
Defendants, after a general denial, deny that plaintiff owns or possesses the north fifty-two feet of said lots, admitting, however, that they claim title to said fifty-two feet, but disclaiming ownership as to the remaining portion of said lots. They further aver that the other defendants herein have conveyed title to defendant Carrie M. Meatte, and that she now has full title to said fifty-two feet. The reply is a general denial.
It seems to be conceded that the evidence adduced warrants the finding that by warranty deed, dated February 11, 1911, plaintiff acquired title to said lots 17 and 18 from Fred Morgan and wife. At that time there were buildings on the south and north end of the lots. On May 24, 1913, fire destroyed the building on the south end, in which W.P. Meatte, husband of defendant, was then conducting a saloon. Shortly thereafter W.P. Meatte began running a saloon in the building on the north part of the lots. There is a warranty deed on record, dated May 27, 1913, according to which plaintiff and her husband conveyed the north fifty-two feet of said lots to W.P. Meatte, for a recited consideration in the deed of $2500, which was recorded December 5, 1913. W.P. Meatte thereafter conducted a saloon in said building on the north portion of said lot until February 24, 1914, when that building also burned. J.G. Crider, the husband of plaintiff, died in 1914, and W.P. Meatte, the husband of defendant, died about six months before the trial of this case. W.P. Meatte, paid rent to plaintiff or her husband while he occupied the building on the south part of the lots, but the record is without evidence that he ever paid rent to either of them after he moved into the building on the portion in controversy. The structures were not rebuilt after the fires, the lots remaining vacant thereafter.
The evidence adduced on the part of plaintiff would warrant the finding that she paid the taxes on the whole of lots 17 and 18 from 1911 thereafter. That during all this time she claimed the property. It was not until after W.P. Meatte's death that she learned that a deed was recorded conveying the north fifty-two feet to him, or that defendant was claiming an interest therein. Plaintiff moved from Hayti to Caruthersville in 1918, leaving the property in the hands of agents. Occasionally the lots were used for tent shows and at other times she allowed the churches to place stands thereon. The fifty-two feet in question were used by the public for a hitching yard. She had no personal knowledge of any one ever paying her rent on the fifty-two feet in controversy, or on the other portion of the lots, because her agents failed to tell her on what property they were collecting rent. A concrete walk on the south and east side of said lots was constructed before the deed to W.P. Meatte was executed. She refused to swear that she signed the deed, purporting to be executed by herself and husband, dated May 27, 1913, to W.P. Meatte, because she could not say it was her signature and she had no recollection of ever signing it, although the signature bears some resemblance to her signature. An expert witness for plaintiff testified that, in his opinion, the plaintiff signed the deed dated May 27, 1913, in which W.P. Meatte is the grantee. Another witness for plaintiff testified that he took the acknowledgment to the deed made by the plaintiff to Meatte, and after reading the deed and acknowledgment, which was in his handwriting, he would say that he took plaintiff's acknowledgment to that deed. He further stated that the lots for several years past had been used as hitching yards, and for carnival and tent shows. He had never heard either plaintiff or defendant's husband make any claim to the fifty-two feet in controversy after May 27, 1913.
Testimony of other witnesses tended to show that they had never heard W.P. Meatte speak of or claim the fifty-two feet in controversy, but that plaintiff always claimed these lots, including the portion in controversy. They testified that it was generally reputed among the citizens of Hayti that plaintiff owned the lots. They also testified, relative to consideration, that Meatte wanted the deed so as to get possession of the building on the north portion to operate a saloon, which at that time was occupied as a restaurant. In order to obtain possession plaintiff's husband and Meatte though it best that the latter should have a deed, and that this was the purpose of making the deed. Only the south portion of said lot was used for carnivals and church purposes. Another witness for plaintiff testified that he heard W.P. Meatte say in his lifetime that Crider had made him a deed to the back part of these lots, but that he did not pay Crider anything for the deed and that the deed never had been recorded. Still another testified that W.P. Meatte told him that he had a deed to the back end of these lots, but that he never paid taxes on the property and never paid anything for the deed. Dr. Crider gave him the deed to obtain possession of the place, and he never had the deed recorded. Meatte told him that some one approached him to buy the property, but he informed him that he had not bought the property and would not sell it. That his purpose in getting the deed was to get possession. That they had trouble in getting possession. He saw Dr. Crider hand Meatte a paper, which Crider said was a deed to get the man conducting the restaurant out of possession.
About six years before the trial a fence was built around a portion of the property to keep horses and wagons out, but it disintegrated about two years prior to the trial. The county collector stated that his books from the year 1918 show that plaintiff had paid taxes on both lots until the year 1924. In 1924 defendant paid taxes on the rear fifty-two feet. Plaintiff, however, that year paid taxes on the whole of said lots, because they were not separated. The fifty-two feet was never set off to itself, so that it should be separately assessed. Lots 17 and 18 are carried on the books as whole lots and the taxes were paid on the lots as a whole, and they were so assessed prior to 1924.
The defendant's evidence warrants the finding that plaintiff and her husband executed a warranty deed to W.P. Meatte, the husband of defendant, dated May 27, 1913, acknowledged before B.F. Allen, justice of the peace, and filed for record December 5, 1913, which recited a consideration of $2500 and conveyed the north fifty-two feet of said lots 17 and 18. There was also offered in evidence a quit-claim deed from defendant's co-defendants, conveying to her their interest in the fifty-two feet in controversy, and that said grantors were the only heirs of W.P. Meatte. A witness for defendant testified that he heard Dr. Crider say, immediately after the first fire, that he had sold to Meatte that building over there. Another witness stated that he was working for Meatte in 1917 and 1918, and during that time he heard Meatte make a trade with some show people for the use of the back part of these lots, at which time Meatte was claiming the property. Another witness, an attorney for defendant but theretofore a representative of plaintiff in the handling of her property, stated that he never rented the two lots for plaintiff, but that he had rented other lots for her. That after the fire the rear fifty-two feet was always used as a public hitching yard. He stated the two lots were known as the Crider lots, although he had never heard either plaintiff or her husband make any claim to the fifty-two feet in question after the deed to Meatte.
Another witness for defendant testified that he was employed in the barber shop close to the lots in controversy, and that he heard Meatte say about a month before his death that he had fifty feet, or something like that, on the rear end of these lots, but that he did not intend to bother with it while he lived, and if he died, it would go to his family. He also heard Meatte say that he saved $200 by not having to buy another license when he moved on the fifty-two feet, and that he paid an additional $500 for the building.
Plaintiff stated in rebuttal that Mr. Duffy, while he was mayor in 1919, put a fence around these lots to keep people from driving wagons thereon, and this fence stayed there two or three years, and was never replaced after disintegration. Other pertinent facts, if any, will later be noted.
I. The petition avers ownership of the lots in plaintiff and the existence of a recorded warranty deed clouding her title, but denies that plaintiff signed or executed it, and prays its cancellation. The averment is synonymous with a charge Suit in of forgery or spuriousness, which, with the prayer for Equity. cancellation, determines the proceeding a suit in equity. Consequently, equitable procedure applies, resulting in the cause being triable here de novo, and casting the burden of finding the facts on this court. Instructions, therefore, are out of place and their presence or absence will be disregarded.
II. It is said that the record is without substantial evidence to sustain the judgment. The principal phase of this contention is based on the lack of evidence that plaintiff Delivery delivered or authorized the delivery of the deed to of Deed. Meatte. The authorities are in accord that delivery is essential to the validity of a deed and without it all other formalities are ineffectual. We may infer from the facts that plaintiff's husband conducted the negotiations. The evidence directly shows that he delivered the deed to Meatte, who forthwith took possession of the premises in dispute. It was clearly established, we think, that plaintiff and her husband signed and acknowledged the deed. However, the record is mute as to whether plaintiff expressly gave or denied her husband authority to deliver the deed, necessarily so, for she stated she had no recollection of ever signing it. She testified that Meatte paid rent while in possession of the building on the south part of the lots until fire razed it, but failed to mention that Meatte paid rent while occupying the building on the north portion of the lots, which comprises the portion in controversy, and we may assume that he did not. Moreover, plaintiff failed for more than ten years to assert her rights. Therefore, when the facts developed that plaintiff's husband conducted the negotiations and manually delivered the deed to Meatte, which deed describes the identical property and shows a substantial consideration, that Meatte immediately took possession of the premises and later recorded the deed, with a lack of showing that Meatte paid rent for the premises, and that a great length of time elapsed before plaintiff instituted suit, in the absence of evidence impeaching the bona-fides of the transaction, a prima-facie case was made that plaintiff authorized her husband to deliver the deed to Meatte.
Plaintiff, however, questions the good faith of the transaction. She asserts that the evidence establishes that Meatte was given the deed in order that the tenant in possession might efficaciously be evicted. She bases her position on the statements of witnesses that Meatte desired a deed to evict the occupant; that he said he had not bought the property; that he had not paid anything for the deed, and that he had not recorded it or paid taxes. However, to impeach a deed regular on its face and showing a substantial consideration, cogent and satisfactory evidence is required. To refute whatever force, if any, this evidence may have is the lack of evidence that Meatte attorned to plaintiff and paid her rent and the substantial consideration of the deed itself, which deed, we assume, acknowledged the receipt of the consideration, for plaintiff's abstract, which hardly more than refers to it, states that it is conceded this deed conveyed the title at the time to W.P. Meatte, provided plaintiff executed it and authorized its delivery and her signature was obtained without mistake or fraud. Furthermore, there is direct evidence that Meatte paid a substantial consideration; on the other hand, plaintiff was mute as to whether any consideration was paid. Considering all the facts and circumstances, we think the conclusion is probable that the transaction was a bona-fide sale and that plaintiff authorized her husband to deliver the deed to Meatte. This conclusion is accentuated by plaintiff's silence respecting the receipt of either the rent or consideration, and respecting an effort made, resulting in failure to enforce collection.
III. Plaintiff avers that a deed absolute on its face may be construed to be a mortgage or a lease, citing Stephens v. Stephens, 232 S.W. 979. She fails to further elaborate the averment. The cited case holds that, to establish such Mortgage a deed a mortgage or a lease, clear and convincing or Lease. evidence is necessary. We think the evidence not only fails in that regard, but fails to develop a scintilla of evidence upon which the rule could operate.
IV. Plaintiff raises in her brief issues of fraud and mistake. She interprets the evidence as showing the obtention of the deed without knowledge of its nature on her part, if she signed it, and the absence of a paid purchase price, thereby Fraud and deducing fraud or mistake. We think there is hardly a Mistake. doubt that she signed the deed. The burden of proof was cast on her to show that she had no knowledge of the nature of the instrument at the time she signed it, as well as to show by satisfactory evidence, even if she were permitted to impeach the consideration of the deed by establishing that none was in fact paid, the total want of a valuable consideration. Such evidence as favors her in that regard, if any, fails to satisfactorily sustain her contention. Moreover, the petition lacks an averment of either fraud or mistake.
V. Plaintiff also raises in her brief the issue of estoppel in pais. She contends that it need not be pleaded where it is inherent in the title or the facts develop it. She argues that surrender of possession and disclaimer of interest Estoppel. will constitute estoppel, provided they are made with knowledge of legal rights by the party surrendering and disclaiming, where the other party expends money for improvements, pays taxes for a length of time and holds possession in good faith under color of title. We do not understand from the evidence that Meatte surrendered possession to plaintiff. While there is evidence that Meatte disclaimed any interest in the property, it is rather incoherent and is refuted by the force of the evidence in defendant's behalf, that Meatte claimed it. The only improvement shown related to a fence erected on one side of the property in 1919, which was of slight value. Of itself, this was insufficient to show a surrender or disclaimer and therefore an estoppel. Nor was the payment of taxes sufficient of itself to constitute such.
VI. Plaintiff also asserts title to the northern fifty-two feet of said lots by adverse possession. There seems to be no doubt that the grantor of real estate may acquire title Limitations. to premises conveyed by him by holding possession adverse to the grantee for the limitation period. Such possession by a grantor differs only from possession originated by another, in that it generally requires stronger proof to substantiate it. However, one asserting title by adverse possession is cast with the affirmative, and the burden to establish it by clear and positive proof rests on him who asserts it. Consequently, plaintiff was cast with the burden of establishing title in her by clearly showing an actual, open, notorious, exclusive and hostile possession for the full limitation period, under a claim of right.
We are concerned principally with the question of the sufficiency of the proof as to plaintiff's actual possession, which it was necessary for her to show to permit her to recover on the ground of adverse possession. Such possession, to be held adverse, must be shown by clear, distinct and unequivocal evidence. Residence, however, is not always an essential of actual possession, for, in connection with a claim of exclusive ownership, it may be shown by acts of dominion over the property.
Plaintiff seeks to establish title thus by several distinct acts of alleged actual possession. These are the payment of taxes, the renting to carnivals, the permission given to the churches, and the appointment of agents to supervise the lots, to which may be added her claim of color of title, although color of title is not an element of adverse possession. While there is seeming support for plaintiff's contention in regard to color of title (Gaines v. Saunders, 87 Mo. 557), there is much authority in other jurisdictions to the contrary. [2 C.J. 199.] However, we do not think color of title is involved, for plaintiff has not shown actual possession by satisfactory evidence. We have held that, while payment of taxes is evidence of a claim of ownership, it is not evidence of possession (Woodside v. Durham, 295 S.W. 773). Nor do we think that the appointment of agents to supervise her property and the occasional and casual renting of her lots to carnivals, together with the permission granted to the churches, show such continuity and duration of possession as to justify a finding of adverse possession. The evidence goes no further than showing that carnival tents and church stands were erected on the southern portion of the lots, to which plaintiff had undisputed title, and which seems to be more advantageously located. The use of the portion of the lots in controversy on these occasions was limited to people walking over it.
We are unable to find either an entry upon the premises by plaintiff with the intention of claiming title, or the ouster of Meatte. Furthermore, the only acts shown to have extended the full limitation period were the payment of taxes. The year plaintiff's property was first rented to a carnival, or permission was first granted to a church, is not shown. The erection of the fence on the cast side of the lots by plaintiff's agent to keep people from using the lots as a hitching yard did not occur until 1919. In view of the facts and circumstances, we do not think plaintiff has established possession as cogently and with such certainty as the law requires.
The judgment is affirmed. Higher and Henwood, CC., concur.
The foregoing opinion by DAVIS, C., is adopted as the opinion of the court. All of the judges concur.