Kellogg v. Mullen

39 Mo. 174

• Court: Supreme Court of Missouri
• Decided: October 15, 1866
• Status: Published

Opinion

Holmes, Judge,

delivered the opinion of the court.

The decision of the case turns upon the question of adverse possession. Both parties claim under a common grant- or. The deeds from this grantor convey adjoining lots. The plaintiff claims one of the lots under a deed made in 1847. The defendant claims as the lessee of the grantee under a deed of the other lot made in 1851. At the time of the first deed there was an outstanding lease from the same grantee covering the premises in dispute for a term of twenty years, which expired in 1857. The defendant then took possession of the premises under his lease from the grantee in the second deed of 1851.

It is plain that there could be no adverse possession of these premises until after the expiration of the lease for twenty years under which the possession was held. If the defendant had entered before that time he would have been considered as having entered under the tenant holding under that lease or as a mere intruder, and then as against the landlord and those holding under him he would have been treated as having got the possession from such tenant — Willi v. Peters, 11 Mo. 396; Shepard v. Martin, 31 Mo. 492. If he entered after the expiration of that lease, and under his lease from the grantee in the deed of 1851, then the statute of limitations had not run against the plaintiff for ten years before the suit commenced.

The instruction refused for the plaintiff should have been given. The instruction given for the defendant was not warranted by the evidence before the jury.

Judgment reversed and the cause remanded.

The other judges concur.