Defendday of

wit, by representing himself to be the agent of defendants, and by trying to sell machinery and twine to said divers persons in said counties on said representations, and by saying to said divers persons, "I am selling twine for George L. Jewett & Co., of St. Joseph." Defendants charge that said representations and said words spoken by plaintiff were false, and at said time were known by plaintiff to be false, were made and spoken by plaintiff to members of said organization or association known as the Farmers' Alliance or the Farmers' & Laborers' Union with the intention and for the purpose of injuring the standing of defendants with said organization or association and for the purpose of selling his own machinery and twine to said members of said organization; that plaintiff, by making such false representations, and by speaking said false and slanderous words of defendants, caused the impression to prevail with the farmers and citizens of said counties of Buchanan and Platte that plaintiff was the agent of said defendants. ants further say that on the February, 1891, the said organization or association known as the Farmers' Alliance & Laborers' Union of Buchanan county, Mo., met in convention at the courthouse in St. Joseph, Mo.; that members of said organization from Platte county and surrounding counties were present at said convention; that plaintiff was present at said time, and arose in said convention to address the members of said organization there assembled; that during his remarks he stated that George L. Jewett & Co. had no connection with the Farmers' Alliance of Platte county whatever. Defendants charge that said statement was false, and that plaintiff knew it to be false when he made it, and that it was made maliciously and willfully, with the intent of injuring the standing of defendant with said organization in Buchanan and Platte counties. Defendants, further answering, deny each and every allegation in said petition contained, except such as are above specially admitted.

The reply of plaintiff was a general denial of the new matter in defendants' answer. The verdict was for defendants.

mentioned testimony, the plaintiff objected, when same was offered, on the ground that it was hearsay and rumor, but the court overruled said objection, and the plaintiff excepted to the ruling at the time. The defendants offered to prove by witnesses from different localities in Platte and Buchanan counties that before June 1, 1891, it was rumored in their respective neighborhoods that plaintiff was selling twine for defendants. To this testimony, when offered, the plaintiff objected on the ground that it was irrelevant, incompetent, and hearsay, but in each instance the objections were overruled by the court, to which ruling of the court plaintiff at the time duly excepted; and in each instance the testimony was admitted by the court, the court admonishing the jury at the time that the testimony was admitted on the ground that the jury might take into consideration such facts in determining whether or not the defendants were actuated by malice in sending out the circulars, and for the further purpose of showing the extent of the circulation of the representations we plaintiff had made regarding his selling twine for George L. Jewett & Co., providing the jury found that plaintiff had made such representations, and that such rumor was not admitted to show that plaintiff had made such representations. To which action, ruling, and statement of the court the plaintiff duly excepted at the time. At the close of defendants' evidence, plaintiff asked the court to instruct the jury that, under the pleadings and evidence in the case, the plaintiff was entitled to recover. This instruction was refused by the court, to which action and ruling of the court in refusing to give said instruction the plaintiff excepted at the time.

1. The first assignment relates to the action of the court in permitting defendants to prove that a number of people from different portions of Platte and Buchanan counties, in April and May, 1891, came to defendants' office, in St. Joseph, and inquired if George R. Arnold was selling twine for them, and said they heard he was selling twine for them, and that there were rumors to that effect. The defendants did not offer to prove by these witnesses that plaintiff had said he was sell

There was evidence to prove all the allegations of the petition and the answer. Defendants also introduced testimony tending to show that during the months of April and May, 1891, a great many persons from different parts of Platte and Buchanan counties came to defendants' office, and inquired if George R. Arnold was selling twine for Jewett & Co., and said they had heard Arnold (meaning plaintiff) was selling twine for them (defendants). To the introduction of said last

was not to be bound by this hearsay evidence, as proving or tending to prove that he had stated he was selling twine for defendants. It was admitted by the court with an express caution to the jury that it was not for that purpose, and this caution was repeated in an instruction. It was admitted after defendants had introduced evidence tending to prove that on or about April, 1891, at the town of Dearborn, in Platte county, in the presence of three or four persons, plaintiff stated that he was selling, or going to sell, twine for George L. Jewett & Co., and that he repeated this statement, and said he was selling twine for Jewett & Co., and solicited trade, as defendants' agent, at the corner of Fourth and Edmond

streets, in the city of St. Joseph, Mo., on or about May, 1891, and that he made this statement about May 15, 1891, at or near the front door of the defendants' place of business, in St. Joseph, in the presence of several persons, among whom were farmers of Buchanan and Platte counties; that plaintiff also stated to one John Smith, about May 15, 1891, on the streets of St. Joseph, that he was selling twine for Jewett & Co., and wanted to sell some twine to said Smith; that plaintiff was not, and had not at any time been, connected with defendants, as their agent,-and to show the extent of the circulation of plaintiff's representations that he was selling twine for defendants, and to rebut the inference of malice on their part in sending out the circulars after said inquiries and rumors came to their knowledge. Of course, the fact that others have uttered a slander is no justification to me to repeat it; but this evidence was offered in connection with the proof of the truth of the matters stated in the circular, and to show the extent to which defendants understood the plaintiff had spread the report, and to account for their good faith in endeavoring to counteract it. It was not, however, any justification for the charge of falsehood made therein against plaintiff. Qualified and limited as it was both in its admission and by the instruction, we are of the opinion it constituted no reversible error.

2. Plaintiff complains that the court erred in refusing to instruct the jury, at the close of the evidence, to find for plaintiff. There was no error in refusing this instruction. The defendants' evidence tended to establish the truth of all the statements made in the circuJar, and it was peculiarly the province of the jury to believe or disbelieve that evidence, and if they did so it constituted a defense to the action.

3. The instructions given by the court were exceedingly favorable to plaintiff, and his counsel concedes that each one of them, separately, is correct, but complains most bitterly because the court, after thus fully instructing the jury, gave them this additional instruction: (j) The jury are instructed by the court that the instructions given to the jury in this case are for the purpose of aiding you to arrive at a correct verdict. They contain, in the opinion of the court, the law necessary to be considered, under the pleadings and evidence, by you, in arriving at your verdict. They are intended to be-and, in the judgment of the court, they are-consistent each with the other, and should all be considered by the jury together. You are further instructed that in this case, while you should consider, yet you are not bound by, the instructions of the court. You are not only the sole judges of the weight to be given to the testimony, and of the facts, but, under the constitution and law of Missouri, you are yourself the sole judges of the law of libel, as well as of the facts." The argument is that it tells the jury what the law is in one instruction, and then advises the

jury they may disregard it. But we think such an inference is not to be drawn from the instruction. The court simply recognized the organic law of the state, which was binding upon court and jury alike. As in duty bound, the court had instructed and directed them fully into the law of the case, and then told them, in the language of the bill of rights, that they were the judges of the law of libel, as well as the triors of the facts. However anomalous this may seem at this day, no provision of the bill of rights had a deeper significance, and it is the duty of the courts to preserve, rather than question, its obligation. The form of the instruction is unfortunate. The court should have limited the jury's right to judge of the law to the sole question of whether the alleged libelous circular was in fact libelous. On all other questions, the jury are as much bound by all the other instructions of the court in a libel suit as in any other case. It is very evident that the court attempted to follow the instruction in State v. Armstrong, 106 Mo. 395, 16 S. W. 604, but a reference to that case will show that the jury were limited, as judges of the law, to the libel itself. Reg. f. Ramsay, 15 Cox, Cr. Cas. 231. But in view of the fact that all the other instructions are in themselves correct, and the jury were properly allowed to say whether the circular was libelous or not, we are not disposed to reverse the case. There was ample evidence to justify the finding, and it is evidently for the right party. The judgment is affirmed. All concur.

GOLTERMAN v. SCHIERMEIER. (Supreme Court of Missouri. Dec. 4, 1894.) LOCATION OF BOUNDARY LINE-ESTOPPEL TO DISPUTE-ADVERSE POSSESSION-EVIDENCE.

1. Where one of two adjoining landowners places a fence, without opposition from the other, on what is erroneously supposed by both to be the proper boundary line, the other is not estopped to thereafter set up the error.

2. For 30 years plaintiff made no claim to land south of a certain line, during which time defendant, the adjoining landowner, claimed up to such line, as plaintiff knew. A fence had been built along only a part of the line, and the uninclosed land consisted of timber land. The only evidence of specific acts of ownership of the latter land by defendant was the cutting of firewood therefrom 20 years before suit, and the cutting of hickory wood for sale 16 years before. Held, defendant did not obtain title to the uninclosed land by adverse possession. Black, C. J., and Brace, J., dissenting.

In

-end, and about one chain wide at the east end. The north line is known in the record as the 'Krekel Line,' and was established in 1847 by Surveyor Krekel as the east and west center line of the section. The south line is, however, the true east and west center line. The plaintiff owns land on the north, and the defendant on the south. Their respective title papers call for the east and west center line. The plaintiff, therefore, has the title, and should recover unless defeated by the tenyears statute of limitations. This suit was commenced on the 10th February, 1887. In 1852 the plaintiff's father, through whom he claims, and Knippenberg, through whom the defendant claims, staked out the line along the Krekel survey as the dividing line between their possessions, they then being in possession of their respective farms. Knippenberg and the defendant built a fence on the Krekel line, a half mile in length, beginning at the west end, and running east. This part of the land in question has been in the possession of the defendant and his grantor for much more than ten years before the commencement of this suit, and as to it there can be no doubt but the defendant should prevail. The real dispute is over the east third in length, containing about three acres. 1880 or 1881 the defendant extended his fence east so as to include the three acres, and Lence had that part in his inclosure for six or seven years before the commencement of this suit. The controversy then comes to this: whether there is any evidence of adverse possession by the defendant for the three or four years prior to the last-mentioned date. Besides the facts before stated, as to which there is no dispute, the evidence shows that plaintiff's father built a fence along the three acres ten or fifteen feet north of the Krekel line as far back as 1852. This strip of ten or fifteen feet in width was left out for the purposes of a road, and was thereafter so used by the plaintiff and his father. There is evidence that the plaintiff, in 1868, stepped over the Krekel line, and cut some trees. When knowledge of this came to his mother, who was in possession of the land now owned by him, she reproved him for cutting trees on other people's land, and he replied that defendant would not care or cry about it. It appears defendant cut several loads of firewood from the three acres in 1871 or 1872, and in 1876 he cut and sold ax-handle timber therefrom. Defendant used the three acres just as he did his timber land on the south. Indeed, the three acres were always deemed and treated as part of his 40-acre timber tract. Now, I readily concede that the acts of cutting wood at one time and ax-handle timber at another time, taken by themselves, do not make out a prima facie case of adverse possession. But, in my opinion, they must be taken in connection with the other circumstances; and, when this is done, there is an abundance of evidence of adverse possession prior to the building of the fence, in

1880 or 1881. In the first place, the evidence is clear to the effect that plaintiff and his father did not claim south of the Krekel line. Their acts and declarations tend to show a disclaimer of even constructive possession south of that line, and a daily admission of the right of the defendant to the possession of all the land south of it. There was therefore no conflicting possession or claim of a conflicting character. Each respected the possession of the other up to that line. It is no doubt true that the possession, to constitute a disseisin, must be actual and adverse, and generally it must be so notorious that it may be presumed to have been known to the rightful owner. The reason for the rule that the possession must be notorious is that the true owner may have notice. Where he has actual knowledge of the adverse claim and possession, the acts of notoriety become unimportant, for actual notice is equal to, if not superior to, presumed notice. This principle has been asserted and applied in several cases in this court. Dausch v. Crane, 109 Mo. 336, 19 S. W. 61; Allen v. Mansfield, 108 Mo. 343, 18 S. W. 901; Key v. Jennings, 66 Mo. 367. Speaking of this principle, it is said: 'If it were proved that the owner of the land had actual notice of the adverse claim, and of some acts of ownership thereunder, it might be sufficient to bar the owner under the statute, though, in the absence of actual notice, such acts of ownership of the adverse claimant would not be held sufficient to constitute adverse possession.' Sedg. & W. Tr. Tit. Land (2d Ed.) § 734. Now, we have these broad and undisputed facts in this case: The plaintiff and his father never claimed title or possession to any land south of the Krekel line until shortly before the commencement of this suit. The defendant and his grantor always claimed title or possession up to the Krekel line on the south. This claim was known and respected by plaintiff and his father from 1852 down. More then two-thirds of the land in dispute was in the inclosures of the defendant for more than ten years before the commencement of this suit. These three acres were from 1852 down claimed and used by the defendant just as he claimed and used his other wood land to the south of the three acres, all of which was known to the plaintiff. The acts of possession as to the three acres were the same as to the other timber land owned by the defendant. My conclusion is that there was evidence of adverse possession of the three acres for many years prior to 1880 or 1881, and, this being so, the judgment should be affirmed."

H. C. Lackland and C. W. Wilson, for appellant. Theo. Bruere and T. F. McDearmon, for respondent.

MACFARLANE, J. The suit is ejectment originally to recover 16.95 acres of land in section 31, township 46, range 1 E., in St.

east part of the strip in question because he believed he owned it, and not on account of anything done or said by plaintiff. The Kre kel line was well known to both parties, but they were mutually mistaken in believing it to be the true line. Under the evidence, we think the instruction properly refused.

2. The evidence shows conclusively that defendant and his grantors claimed to the Krekel line from about 1818 to the commencement of the suit, of which, during the whole time, plaintiff and his grantors had notice and knowledge; that plaintiff built his own fences on or near the Krekel line, where they remained until the commencement of this suit, and, by his conduct, recognized that line as the true one. Defendant inclosed, without objection by plaintiff, about twothirds, being the western part of the land, more than 10 years before the commencement of this suit. This was permitted by plaintiff under the mistaken belief that the Krekel line was the true one, and not under any agreement as to the true line. The 40-acre tract that was inclosed with the east end of the strip now in dispute was unimproved timber land at the time of its inclosure. Defendant had other timber land between his dwelling and said 40-acre tract. Only a portion of the disputed land was susceptible of cultivation. Witnesses testified in a general way that defendant exercised such acts of ownership over the land as were usual under such circumstances. The only proof of specific acts of ownership by defendant will be noticed hereafter. When plaintiff fenced his land, he left an irregular strip, averaging about 100 feet in width, between his fence and the Krekel line, which was used for a private or neighborhood road. The only real question in the case under this evidence is whether defendant acquired title by adverse possession to the land which had not been inclosed by fence for 10 years when the suit was commenced. In the consideration of this question, we must bear in mind that the statutory rule (Rev. St. 1889, 6768) that possession, under the color of title, of a part of a tract, in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract so claimed, shall be deemed, under the statutes of limitation, a possession of the whole of such tract, is not applicable to cases of interfering or lapping surveys forming boundaries between adjacent proprietors. The exception is recognized by Judge Scott in McDonald v. Schneider, 27 Mo. 411, in the following language: "When two persons possess adjoining tracts, and their possession conflicts, or interferes one with the other, the legal possession is adjudged to be in him who has the better title; for, as both cannot be seised, the possession follows the title. Yet, if he who has the inferior title enters upon the interference, and actually occupies it, adversely to him who has the better title, for a sufficient length of time, he will acquire

the title against the true owner by limitation as to the portion actually occupied, although the true owner may be in the actual possession of that portion of his tract not covered by the interference." So Judge Black says in this case (111 Mo. 421, 19 S. W. 484, and 20 S. W. 161): "As the plaintiff is the rightful owner of his farm, and is in possession of a part, that possession will draw to him possession of all the land embraced in his muniments of title which is not in the actual exclusive possession of defendant; and this would be true if defendant had color of title. The defendant, to defeat the action, must therefore show actual, exclusive possession for the period of ten years before the commencement of this suit." See, also, Land Co. v. Hays, 105 Mo. 151, 16 S. W. 957, and the rule there summarized, and cases cited. While the records of the county court concerning the survey and sale of the S. 1⁄2 of the section as school lands, which were introduced in evidence in this trial, and the patents issued by the state to the purchasers, may show color of title in defendant to the disputed strip of land, still plaintiff, having title to and possession of the remainder of the tract, is seised of all contained within the muniments of his title, to which defendant had not acquired seisin by actual, visible, and exclusive, adverse possession for 10 years.

3. The impracticability of formulating any general rule for determining what possessory acts will start the running of the statute, and keep it going, has often been expressed by this court. The question of adverse possession is one, says Judge Scott, "compounded of law and fact, and every case in which it is involved must be determined by its own circumstances," depending upon the nature and situation of the land and the uses of which it is capable. Draper v. Shoot, 25 Mo. 203; Leeper v. Baker, 68 Mo. 402. We may add that it depends much also upon the nature of the claim under which the right to the possession is asserted. The statutory constructive possession of an entire tract, which accompanies actual possession of a part, would require acts of ownership less specific than would be required of one who enters without right, and retains possession by wrong. In the former only the exercise of "the usual acts of ownership" of the part not actually possessed is required, while in the latter the possession will not be extended beyond the limits of actual occupancy. Bradley v. West, 60 Mo. 40. In cases like this, in which possession is taken in good faith, under color of title or claim of right, it is held that, to constitute an adverse possession, there need not be a fence, building, or other improvement made. "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." Draper v. Shoot, supra. It will be observed that this rule requires less to constitute adverse pos