2 S.W. 312 (Mo. 1886), Keen v. Schnedler

Citation:2 S.W. 312, 92 Mo. 516
Opinion Judge:Black, J.
Party Name:Keen, Appellant, v. Schnedler et al
Attorney:Lackland & Wilson for appellant. Noble & Orrick, W. A. Alexander and T. F. McDearmon for respondents.
Case Date:December 06, 1886
Court:Supreme Court of Missouri
 
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Page 312

2 S.W. 312 (Mo. 1886)

92 Mo. 516

Keen, Appellant,

v.

Schnedler et al

Supreme Court of Missouri

December 6, 1886

Appeal from St. Louis Court of Appeals.

Reversed.

Lackland & Wilson for appellant.

(1) Plaintiff's first instruction is qualified by the fourth. There is nothing misleading. It is, in the main, right. There is no reversible error, if any. State ex rel. v. Coontz, 83 Mo. 323, 331-2; Russell v. State Insurance Co., 55 Mo. 594; Bridwell v. Swank, 84 Mo. 456, 467; Wade v. Railroad, 78 Mo. 362, 366; Gray v. Packet Company, 64 Mo. 50; Kimes v. Railroad, 85 Mo. 611, 614; Hamilton v. Boggess, 63 Mo. 233, 243; Bradley v. West, 60 Mo. 33, 41; DeGraw v. Taylor, 37 Mo. 310; Knowlton v. Smith, 36 Mo. 507, 514. (2) Plaintiff's sixth instruction is right. There was ample evidence to support it. Huckshorn v. Hartwig, 81 Mo. 648; St. Louis University v. McCune, 28 Mo. 481; Knowlton v. Smith, 36 Mo. 507, 514; Kincaid v. Dormey, 47 Mo. 337; Tamm v. Kellogg, 49 Mo. 122, 123; Thomas v. Babb, 45 Mo. 384; Hamilton v. West, 63 Mo. 93; Lemmon v. Hartsook, 80 Mo. 13; Smith v. Lindsey, 89 Mo. 76; 3 Wash. on Real Prop. 125. (3) Defendants asked for the same declaration of law themselves. Defendants' instructions, seven and fourteen, are the same as plaintiff's instruction six. They are, therefore, estopped from complaining. Crutchfield v. Railroad, 64 Mo. 255; Davis v. Brown, 67 Mo. 313; McGonigle v. Daugherty, 71 Mo. 259, 265-6; Mastin Bank v. Hammerslough, 72 Mo. 274; Smith v. Culligan, 74 Mo. 388; Bettes v. Magoon, 85 Mo. 580, 586. (4) To trace the title to a common source is sufficient. Defendants' instruction eight was properly refused. Miller v. Hardin, 64 Mo. 545, 546; Butcher v. Rogers, 60 Mo. 138. Possession is presumed to be in the owner of the title. Bradley v. West, 60 Mo. 33; Mylar v. Hughes, 60 Mo. 105. (5) Defendants' instruction ten was properly refused. (6) Defendants' instructions eleven and thirteen were properly refused. They are demurrers to the evidence. If there is any evidence at all tending to support plaintiff's cause, the case must go to the jury. Clotworthy v. Railroad, 80 Mo. 220; Wash v. Morse, 80 Mo. 568; Grewington v. Jenkins, 85 Mo. 57; Baum v. Fryrear, 85 Mo. 151; Groll v. Tower, 85 Mo. 249. (7) Defendants' instruction twelve was properly refused. An unrecorded deed is good against all the world, except a subsequent innocent purchaser, for value, without notice. Strickland's Heirs v. McCormick's Heirs, 14 Mo. 166, 169; Cape Girardeau Road Co. v. Renfro, 58 Mo. 265, 271-2; McCamant v. Patterson, 39 Mo. 100, 110; Gibson v. Chouteau, 39 Mo. 536, 558; Railroad v. Moore, 45 Mo. 443. The defendants had notice of this unrecorded deed by the recitals in their own deed from Watson to Hansell. Scott v. McCullock, 13 Mo. 15, 16; 1 Story's Eq., sec. 400; 1 Greenl. Evid., sec. 23; Brush v. Ware, 15 Peters [U.S.] 93. (8) It is well settled that remittiturs are allowed for the purpose of correcting judgments in which the finding has been for too large an amount. They may be entered in ejectment cases. Gibson v. Chouteau, 50 Mo. 86; Priest v. Deaver, 22 Mo.App. 284-5; Henry v. Bassett, 22 Mo.App. 673. They may be entered in the Supreme Court. Gibson v. Chouteau, 50 Mo. 86; Miller v. Hardin, 64 Mo. 545; Johnston v. Morrow, 60 Mo. 339; Cook v. Railroad, 63 Mo. 398, 403. The allowance of the remittitur in this case by the trial court was highly proper. (9) The record furnishes all the data, and contains all the facts necessary for the accurate adjustment of the remittitur and a just apportionment of the damages. Kimes v. Railroad, 85 Mo. 614; Wade v. Railroad, 78 Mo. 366; Fine v. St. Louis Public Schools, 39 Mo. 68. (10) The remittitur entered by the trial court defines a definite tract. But granting it to be otherwise, it furnishes no ground to the St. Louis court of appeals for reversing the case. That court had power to correct the judgment without remanding the case. So has this. It was not a reversible error, if true. Philips v. Evans, 64 Mo. 22; R. S., 1879, secs. 3570, 3582, 3583, 3375, 3776; Hunt v. Railroad, 89 Mo. 607; Cruchon v. Brown, 57 Mo. 38, 39; Lemmon v. Hartsook, 80 Mo. 14, 21; Fine v. St. Louis Public Schools, 39 Mo. 68. (11) There is nothing in the objection to the change of venue, and to the jurisdiction of the Warren circuit court. Plaintiff's application contained all that the law required. The statute does not require a plaintiff to state, in his application for a change of venue, the time when he obtained his information or knowledge of the causes for which he asks the change of venue, but it does require it of a defendant. R. S., 1879, secs. 3731, 3732, 3733. (12) But it is immaterial in this case, because the defendants appeared in the Warren county circuit court and defended without objection. Powers v....

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