LARWELL V.
'. D. J. As heretofore stated,the pleadings led the' court to make many erroneous rulingsconce,rning the admission and rejection of testimony. An effort was made in the instructions, by the consent of the plaintiff, to avoid such errors, the rulings having been mainly against the plaintiff. But the, defendant is before 'the court to take advantage of erroneous rulings, which he has a right to do. Hencethis court, admitting its errors during the trial, must grant the motion. The more important propositions submitted by the defendant the court does not now pass upon, although its impressions with respect thereto are strongly against the defendant. If a foreign corporation, by clauses transacts business in Missouri by virtue of its laws, inserted in its policy, take itself out of the force of Missouri laws? It is not proper to discuss that question now. But for the errors committed as to the rejection and admission of testimony objected to, the court would so rule as to compel, a decision on the main question, viz., whether a foreign insurance company doing business in Missouri can escape the consequences of tho Missouri statutes by any or contrivances, written or oral, for that purpose. It ill to be regretted that this case must be tried again" /lnd it. is that before the next trial the pleadings, by proper motion, may be made to raise questions of fact alone, so that the court may be duly advised as to what facts are committed to the jury, reserving to the court the legal propositions arising. . Motion for new trial is sustained. TREAT,
Carr et Reynolds, for plaintiff. Overall, Judson « Tutt, for d-efendant.
LARWELL
v.
STEVENS.
(Oircuit Couri, W. D. Missouri, W. D. October. 1880.) 1.. EJECTMENT-ADVERSE POSSESSION.
To defeat the title of the plaintiff the of the defendant must be adverse-that is, in hostility to the title of the owner; for if the possession is held by mere indulgence and by consent of the owner, and the defendant understood this, and acquiesced, the possession is not adverse. 2. BAME-STATU'!'E OF MUST BE ExCLUSIVE.
The possession, in order to avail the defendant under the plea of the statute of limitations, must be exclusive possession, and not held within 10 years prior to the commencement of the suit. in conjunction with one who was the real owner·.
an
560 3. 4.
FEDERAL REPORTER.
BAlm-POSSESSION FOLLOWS TITLE.
The possession follows the title, and, if the owner and others are In possession, the law considers the owner as in possession. DAMAGES-MEASUltE OF.
The damages consist of the value of the property by way of rents during the time the possession has been withheld.
KREKEL, D. J., (charging jury.) The plaintiff, Larwell, brings this action to recover the possession of real estate in Kansas City, on which the defendant, Stevens, resides. To make out his case he presents sundry c'onveyances embracing the property in controversy. raised on the introduction of these title papers having The been overruled, it may be taken that they tend to show title in plaintiff, and, if the deeds are found to be genuine, vest the title in the plaintiff. To defeat the title of plaintiff, the defendant pleads the statute of limitations; that is, he says he has been 10 years at least in the actual, continuous, .exclusive, and visible possession of the property sued for, and has thereby acquired such a right as will defeat the plaintiff's action. In the first place' it is proper to call your attentioD: t6 the fact that the defendant must establish the fact of the possession claimed. The possession must also be adversethat is" ip hostility to the title of the real owner; for if the possession is'held by mere indulgence and by consent of the owner,and the defendant understood this, and acquiesced, the possession is not adverse. A possession while so held cannot ripen into a title which will defeat the true owner of his right, hecause it is not adverse and hostile. As already stated, the possession, in order to avail the defendant, must be an exclusive possession; that is, he must not have held it within 10 years prior to the commencement of the suit, in conjunction with one who was the real owner of it. If the real owner and the claimant of the possession, within 10 years prior to the bringing of the suit, had joint possession of the premises sued for, such a possession will not avail this defendant. The possession follows the title, and, if the owner and others are in possession, the law considers the owner to have the possession. If you shall find from the evidence that this defendant was, at any time within 10 years prior to the bringing of this suit, in joint possession with his son, and that the son was the owner, and claimed title to the property in controversy to the knowledge of the defendant, Stevens, then the plea is not good. The plea of the statute of limitations for the possession Illust be exclusive, and not joint, with one having the title to the property of which they are in joint possession. If you find from
tABWELL '11. STEVENS.
661
"he testimony that the title to the property in controversy was held by anyone within 10 years prior to the bringing of this action, with the intention and for the purpose of giving a home to the defendant, and the defendant knew and consented thereto, such holding is not adverse, and is not in hostility to the title of the owner, and the statute of limitations will not avail the defendant. A title by the statute of limitations may be said to be the continued accretion of time from day to day until 10 years are complete. During all this time the defendant must have been in open, visible, and exclusive possession of the premises. In order to determine whether the poswhether defendant session was an adverse will examine all the acts, doings, and claimed title in sayings of the defendant pertainipg to the possession of the Thus the act of defendant in writing the deed of trustor mortgage by which the ti.tle to the premises in controversy was to be affected, is to be examined by you for the purpose of determining whether' the defendant's possession was not in harmony rather than in hostility to the title of the owner. The non,payment of the taxes for a great length of time, and the reason' given for not making such payment, and the failure to pay, or to pay, the taxes afterthey had been paid, if such failure occurred, insurance and dealing with the loss recovered, will all be carefully examined by you in order to determine the nature of the possession held by Stevens, and whether the same was adverse and in hostility to the title of the owner, or in harmony with it. While the title, growing up under the statute of limitations during the 10 years, becomes a\'ailable to Stevens, if such possession· is in hostility and not in harmony with the title of the owner. you may closely look at sayings and doings of the party who seeks to deprive the true owner of his right by mere possession in order to learn his intention. If such sayings and doings tend to nurse the young and gl'owing title, you may arrive at a conclusion favorable to the defendant. But if any of these sayings and doings tend in the opposite direction, and indicate that the acquiring of a title by possession was not in the mind of the possessor, we may justly and properly arrive at an opposite conclusion, and adverse to the claim set up. You will thus go ov;er the whole of the testimony, and present your conclusions in your verdict. If you find for the plaintiff, you will say in your verdict what the amount of damages are from the day of the bringing of the suit up to the time of rendering your verdict. These damages consist of the value of the property
562
.F;EDERAL REPORTER.
by way of rents during the time the possession has been withheld. You will also find and state in your verdict what is the monthly value ()f the premises. If you find for the defendant, you will so state in your verdict. The jury returned a ver\lict for the plaintiff.
OSTRANDER
MEUNOH.
(otrcuit Oourt, E. D.Mi88oUN. 1. AssrGNMENT FOR BENEFIT OF CREDITORS- VALIDITY.
1881.)
An assignment for the benefit of creditors under a state law is void as against an assignee in bankruptcy under the national bankruptcy act; 'but it is not absolutely void ab initio, but only subject to be avoided by proceedings, taken under the bankrupt act. . 2. BAME-TITLE IN ASSIGNEE.
The title to the estate passes to the assignee in bankruptcy at the time of the conveyance of the assets to him, and the assignee under the state law ceases from that time to have any power to dispose of or appropriate them in any manner; and a demand on the latter in writing for the estate is sufficient without an application for an injunction to restrain him from disposing of the assets of the estate in his hands.
In Bankruptcy. Appeal from the judgment of the district court. Mr. Krum, for appellant. MCCRARY, C. 'J. It is well settled that an assignment for the ben" efit of creditors under a state law is void as against an assignee in bankruptcy under .the national bankrupt act. But it seems that the assignment under the state law is not absolutely voidab initio, but only subject to be avoided by proceedings taken under the bankrupt act. In the present case it appears that the assignee, under the state law, had taken possession of the estate and partially executed the assignment prior to the adjudication in bankruptcy. The assignee in bankruptcy, soon after being qualified and receiving a conveyance of the estate from the register, made formal demand in writing upon the· assignee" under the state law, for the estate. The latter, however, continued to dispose of a part of the estate by paying therefrom certain dividends. The court below instructed the jury that this he had no right to do, and that he was consequently liable to the assignee in bankruptcy for the assets in his hands at the time the demand ,was made. It is said that the assignee in bankruptcy wa$ :QQund to
