In their motion for rehearing appellants assert that the opinion in this case overlooks and is in conflict with Herbst v. Merrifield, 133 Mo. 267, 34 S.W. 571, which they say by inadvertence of counsel was not called to the court's attention in their brief. Appellants argue that the Herbst case holds that where there are two separated tracts of land conveyed by an instrument which amounts to color of title only, possession of one tract will not constitute possession of the other so as to start the running of the Statute of Limitations without a showing of actual possession of the separated tract; and that in the instant case Mrs. Crismond could not have lived on both the eighty acre tracts, hence her statement in her application for loan that she had lived on the land for sixty years prior to 1925 cannot be taken as any evidence that she had taken possession of both eighties as early as 1865.
We, perhaps, should have stated in the opinion that she also said in the application for loan that the land had been cultivated for forty-five years. The whole statement was: "The land has been under cultivation for forty-five years and I have lived on the same for sixty years." She meant, of course, that she had cultivated it that long, as there is no suggestion in the evidence that any one other than herself and husband and her tenants had ever cultivated any of it. Previously in the application the whole 160 acres was described together and referred to as though it were a single tract of 160 acres. Absent any showing or suggestion to the contrary, we think the inference may legitimately be drawn that Mrs. Crismond, when she said she had lived on the land sixty years, meant that she had taken possession of all of it under her deeds that long ago.
In the Herbst case the controversy was between parties claiming title against each other. Plaintiff had good record title and the defendant claimed by limitation but did not show actual possession of the tract in dispute, which was a small parcel two miles distant from the main body of land upon which he lived, nor was there a showing that he had used that parcel in connection with that on which he actually lived.
Moreover, in this case there is no question of adverse claims as between Sarah L. Crismond and appellants. Whatever rights appellants have come through Mrs. Crismond. The question is what title did she claim as between herself and her bodily heirs. Even if her statement as to living on the land could only be referred to the eighty on which the improvements were located, the period during which she had cultivated the land, forty-five years, would *Page 646 carry her possession of the other eighty back to 1880. The reference to cultivation clearly included all of the land. The improvements, as far back as the evidence shows, were on the south eighty. There is no evidence that the family dwelling house had ever been on the north eighty. If the actual possession by Mrs. Crismond of the north eighty can only be said to have been shown as far back as 1880, it was still more than ten years prior to the deeds of trust given by her conveying that eighty, the first of which was in 1909, except for the one given when she got the Bowling deeds and which is sufficiently discussed in the original opinion. Appellants' evidence shows Mrs. Crismond's actual possession of the north eighty (as well as of the south eighty) going back at least to 1892, so that in any event her possession had ripened into title as to each eighty prior to the deeds of trust she gave thereon respectively, with the exception, as above stated, of the mortgage given when the Bowling deeds were made.
It is further insisted that the opinion conflicts with Waddell v. Chapman, 292 Mo. 666, 238 S.W. 481, but that question is sufficiently discussed in the original opinion. The motion for rehearing is overruled.