Smith v. Lindsey

• Decision Date: 07 June 1886
• Citation: 1 S.W. 88,89 Mo. 76
• Parties: SMITH and another v. LINDSEY.
• Court: Missouri Supreme Court

1 S.W. 88

89 Mo. 76

SMITH and another v. LINDSEY.

Supreme Court of Missouri.

June 7, 1886.

1. EJECTMENT — EVIDENCE — COMMON GRANTOR.

In an action of ejectment, it is competent for plaintiff, in order to establish his prima facie case, by proving a common grantor, to ask the defendant whether he claims through the person through whom plaintiff himself claims.

2. DEEDS — PROOF OF — BURNT RECORDS — SECONDARY EVIDENCE.

When the record of deeds has been destroyed by fire, secondary evidence is admissible, and, upon establishing the fact of the original deed or deeds not being in his possession, a party may introduce the abstract and the index to the record required by sections 3816, 3819, Rev. St.

3. PLEADING — ANSWER — DEFECT — WAIVER.

Notwithstanding that an answer only denied "the material allegations of the petition," the defect, if any, is cured by the fact of the parties going to trial treating it as sufficient at the time.

Appeal from Hickory circuit court.

A. S. Smith, for appellants, George A. Smith and another. E. Baldwin, for respondent, George W. Lindsey.

NORTON, J.

This suit is by ejectment, to recover the possession of the S. E. ¼ of section 23, township 27, range 21, located in Hickory county. The defendant answered, denying "every material allegation of the petition." On the trial of the cause the court instructed the jury that, under the evidence, plaintiff could not recover, and rendered judgment for defendant, from which the plaintiffs have appealed, and assign for error the action of the court in giving the above instruction, and in refusing to receive proper evidence.

The evidence of plaintiffs tended to show that in 1876, and for some time prior thereto, one John D. Pitts had been in the possession of the land sued for, claiming it to be his own; that in 1876 said land had, by virtue of certain attachment proceedings, been sold as the property of said Pitts, sheriff deeds made to the purchasers, under which other mesne conveyances whatever title said Pitts owned had passed to the plaintiffs. The ouster was proved as laid in the petition. During the progress of the trial defendant was introduced by plaintiffs, who testified that, in 1880, he was and still is exercising control over the land as his own, and that he regarded the land as his. He was then asked if he held the land as tenants of parties who held under Pitts, and whether he claimed title to the land as derived through parties who claimed title through said Pitts. The court sustained objections made to these questions, and refused to allow the witness to answer them, and in this we think committed error.

In the case of Miller v. Hardin, 64 Mo. 546, it is...