Hickman v. Link

• Decision Date: 22 May 1893
• Parties: HICKMAN v. LINK et al.
• Court: Missouri Supreme Court

22 S.W. 472

116 Mo. 123

HICKMAN v. LINK et al.

Supreme Court of Missouri, Division No. 1.

May 22, 1893.

RETRIAL AFTER APPEAL — UNNECESSARY AND VOLUMINOUS INSTRUCTIONS — EJECTMENT — ABANDONMENT OF PROPERTY.

1. Where, in ejectment, there are but two plain issues of fact, as settled by a prior appeal, which could be clearly presented to the jury in five or six appropriate instructions, and on the retrial the case is sent to the jury on twenty voluminous, confusing, and contradictory instructions, the judgment will be reversed.

2. In ejectment the crucial question was whether a certain purchaser of the premises in dispute had abandoned the same. In one instruction all the acts of such purchaser in relinquishing the property, as shown in the evidence, were recited, and the jury were told that they did not constitute abandonment unless they were done with intent to surrender the property, and the same idea was contained in another instruction. In two others an abandonment is predicated on some of such acts, without reference to his intention. In another instruction the jury were told that one of such acts did not tend to show abandonment, but might be considered, with other evidence, in passing on the issue. Held, that the instructions were so confusing as to compel reversal.

Appeal from circuit court, St. Louis county; W. W. Edwards, Judge.

Action of ejectment by Joshua Hickman against Mary I. Link and Martin Link. From a judgment for defendants, plaintiff appeals. Reversed.

For report of decision on prior appeal, see 10 S. W. Rep. 600.

John W. Booth and Thos. B. Crews, for appellant. A. McElhinney, Phillips & Stewart, and Chas. H. Anderson, for respondents.

BRACE, J.

This is an action in ejectment, in which the defendants had a verdict and judgment in the trial court, and the plaintiff appeals. The case has been here before, and is reported in 97 Mo. 482, 10 S. W. Rep. 600. On the first trial the verdict and judgment were for the plaintiff, and the defendants appealed. This judgment was reversed, and the cause remanded for new trial. On the second trial some new evidence was introduced, cumulative in its character, and in no way changing the complexion of the issues between the parties. It is therefore unnecessary to restate the case. The law of the case was maturely considered, settled, and clearly stated in the opinion of the court, rendered by Black, J., and will not be again discussed. Two brief extracts from that opinion will show precisely the issues of fact that were to be submitted to the jury on retrial. The plaintiff held title by deed to the land. There were two defenses: First, title by adverse possession; second, that plaintiff held his paper title in trust for the real defendant. After an exhaustive consideration of the law governing the first defense, the learned judge concludes by saying: "It therefore follows that, if Goodwin failed or refused to pay the notes which he gave in part payment for his purchase of the 245 acres, and abandoned the possession thereof, and Ann McCourtney, or she and the heirs of Martin McCourtney, for a period of ten years had actual possession of a part of the 480 arpents, and during that period claimed the whole, and exercised over the whole usual acts of ownership, then the defendant should prevail." After a like treatment of the law governing the second defense, he concludes by saying: "To the defense we have been considering it is not necessary that Ann McCourtney should have had ten years' adverse possession. It is enough to entitle this defense to prevail to show that Goodwin in 1853, or prior thereto, declined to pay the notes, abandoned the possession of the property, and that Ann McCourtney thereafter and to her death claimed the land, and defended the title against the adverse claim of Sloan and the heirs of Kreppo." It would seem that the issues of fact...