Keen v. Schnedler

• Decision Date: 06 December 1886
• Citation: 92 Mo. 516,2 S.W. 312
• Parties: KEEN v. SCHNEDLER and others.
• Court: Missouri Supreme Court

2 S.W. 312

92 Mo. 516

KEEN v. SCHNEDLER and others.

Supreme Court of Missouri.

December 6, 1886.

1. EXCEPTIONS — CHANGE OF VENUE — FILING.

The action of the court in granting a change of venue can only be brought before the supreme court for review by means of a bill of exceptions filed in the court in which the application was made, during the term when the order was granted.

2. EJECTMENT — EVIDENCE — UNRECORDED DEED — ADMISSIBILITY — NOTICE.

An unrecorded deed being binding as between parties and all persons having notice of it, it is admissible in evidence in an action between adjoining proprietors, where the title of the opposing party calls for it; that being sufficient notice.

3. STATUTE OF LIMITATIONS — MISTAKE IN BOUNDARY — ADVERSE POSSESSION.

Where the boundary between adjoining properties is in dispute, possession up to what was erroneously supposed to be the true line, with no intention to claim beyond the true line, does not constitute adverse possession.

4. EJECTMENT — EXCESSIVE JUDGMENT — REMITTITUR.

In an action of ejectment, where the jury find for the plaintiff in excess of the land to which he is legally entitled, and for damages, it is competent for the plaintiff to offer to remit the excess; and, where this is done on appeal, the supreme court will affirm the judgment as to the residue.

Appeal from St. Louis court of appeals.

Ejectment. Plaintiff appeals from judgment of the St. Louis court of appeals reversing judgment of the Warren circuit court in his favor.

Lackland & Wilson, for appellant, Keen. T. F. McDearmon, for respondents, Schnedler and others.

BLACK, J.

The plaintiff and the defendant Schnedler are owners of adjoining real estate in the county of St. Charles, and this action of ejectment is the result of a dispute as to the true location of the line between them. The suit was begun in the St. Charles circuit court in 1880, and on plaintiff's application the venue was changed to the Warren circuit court. The judgment in favor of plaintiff was reversed in the court of appeals, and the plaintiff appealed.

Watson formerly owned the whole of the property, and on the fifteenth October, 1856, conveyed to McClaren 107.12 acres. The description in this deed begins at the north-east corner of the N. W. ¼ of section 27, township 48, range 5 E., and thence runs in a south-westerly direction, by a defined line, to a point 2.61 chains south of the south line of that quarter section; thence west, by a line parallel to the quarter section line, 22.78 chains, "to the line of a tract of land sold by Samuel S. Watson and wife to Francis Hansell; thence north, 3½ degrees east," to north line of said N. W. ¼; thence east, with the north line thereof to the beginning. Under a deed of trust given by McClaren, the property was sold to Overall on the thirteenth October, 1860, who conveyed the same premises to plaintiff on the seventh November, 1860. Watson, on the fifteenth October, 1856, conveyed the other parcel, containing 54.11 acres, to Hansell. The description in this deed begins at the north-west corner of said section 27; thence south with the section line 43.35 chains; thence east, by line parallel to quarter section line, 11.39 chains, "to the line of a tract this day sold to Robert McClaren;" thence north, 3 deg. 30 min. east, to north line of section 27; thence west, along the north line of said section, 13.57 chains, to the beginning. On the nineteenth January, 1860, Hansell conveyed this property to Wilke, with the exception that he reserved a few acres in the south-west corner, and, to make up this, the description on the west goes over into section 28, and takes in a strip of land 53 links wide onto the north line; thus making his north line 14.10 chains in length. On the sixteenth August, 1875, Wilke conveyed the same land to the defendant Schnedler. It will be seen that the plaintiff's land is on the east, and defendant's on the west, of the dividing line, and that both deeds from Watson were made on the same day, and each deed calls for the other in fixing the dividing line on the south. The north-west corner of the land conveyed by Watson to Hansell is the corner to sections 21, 22, 27, and 28, and by the deed from Hansell to Wilke the north-west corner is removed 53 links west of the section corner.

The petition alleges that the plaintiff is the owner of certain lands, describing them precisely as they are described in his deeds, and then states that the defendant entered and unlawfully withholds from plaintiff a strip one chain and 23 links wide off of and along the west side of the described lands. Wilke was made defendant on his own motion.

The evidence shows that from 1857 to 1871 or 1872 the plaintiff and his predecessors, on the one hand, and the defendant's predecessors, on the other, held and cultivated up to what is called the line of the old rail fence. Portions of this fence were from time to time taken away, and replaced on the same line. The fence was removed in 1871 or 1872, and from that time to 1875, the plaintiff, on the one side, and Wilke, on the other, used the old fence row for a turning row for their teams in cultivating their respective lands. When Schnedler bought of Wilke, he had the land surveyed by Ertz, who drove stakes at the corners of the dividing line, and some nine months thereafter planted stones in the same places. There was a prior survey made by Fielding for Wilke, when he purchased from Hansell, and some of the evidence tends to show that these two surveys correspond, and that Fielding placed a stone at the north-west corner 53 links west of the section corner, but other evidence tends strongly to show that he placed no stone there. His plat shows none. In 1877 the defendant built a new fence between him and plaintiff on the line of the Ertz survey, and, at the commencement of this suit, was in the possession of all west of this fence. Pursuant to an order of the court made in this case, Mr. Gill, the county surveyor, surveyed and made a plat of these lands. He says he surveyed both parcels of land...