24 S.W. 171 (Mo. 1893), Kelley v. Kurz

Citation:24 S.W. 171, 118 Mo. 414
Opinion Judge:Burgess, J.
Party Name:Kelley v. Kurz, Appellant
Attorney:J. D. Hostetter and Clark & Dempsey for appellant. Joseph Tapley and Fagg & Ball for respondent.
Case Date:December 07, 1893
Court:Supreme Court of Missouri
 
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Page 171

24 S.W. 171 (Mo. 1893)

118 Mo. 414

Kelley

v.

Kurz, Appellant

Supreme Court of Missouri, Second Division

December 7, 1893

Appeal from Pike Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

J. D. Hostetter and Clark & Dempsey for appellant.

(1) The first instruction given for plaintiff is clearly erroneous. The plat book and deeds read in evidence by plaintiff instead of showing the legal title to the land is dispute to be vested in plaintiff unequivocally show that it is not so vested. (2) Defendant's instruction in the nature of a demurrer to the evidence ought to have been given. (3) The failure to describe the land therein renders the verdict and judgment bad and incurable. Sedgwick & Wait Tr. Title to Land, secs. 459, 499, 501; Buse v. Russell, 86 Mo. 211; Mourning v. Coal & Mining Co., 99 Mo. 320; Crawford v. Ahrnes, 103 Mo. 88; Meier v. Meier, 105 Mo. 411; Moore v. Moore, 67 Tex. 263.

Joseph Tapley and Fagg & Ball for respondent.

(1) The action of ejectment was the proper one to try the question involved in the controversy between plaintiff and defendant. The land sued for was only partially enclosed. In making an effort to fence in the premises the plaintiff was stopped by the defendant who claimed to be the owner and in possession. (2) The tract sued for was accurately described in the petition by metes and bounds and the verdict and judgment were such that plaintiff could be put in possession of the identical land claimed by him. (3) The action of the court in giving the instruction asked for by plaintiff was proper. It was the duty of the court as a matter of law to pass upon the deeds and title papers introduced in evidence on the trial. Hunt v. Railroad, 75 Mo. 252. (4) The court committed no error in refusing to give defendant's instruction by way of demurrer to the evidence. (5) Independent of any question of title as shown by the papers the proof was clear and uncontradicted that for a period of fifty years and more previous to the conveyance to the plaintiff on July 26, 1889, the open notorious and adverse possession of the premises in question had been without interruption in Joe McCune and his grantors under color of title. (6) The description of the land as set out in plaintiff's petition was sufficiently accurate and certain and the objection made by defendant to the several deeds read in evidence that they were...

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