Miller v. Hardin

• Decision Date: 30 April 1877
• Citation: 64 Mo. 545
• Parties: EZRA MILLER, Respondent, v. SUE E. P. HARDIN, et al., Appellants.
• Court: Missouri Supreme Court

64 Mo. 545

EZRA MILLER, Respondent,

v.SUE E. P. HARDIN, et al., Appellants.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Jasper County Court of Common Pleas.

Walser & Cunningham, with H. B. Johnson, for Appellants.

David Wagner, with W. H. Phelps, for Respondent, cited: Bucher vs. Rogers, 60 Mo. 138; Fellows vs. Wise, 49 Mo. 350; Brown vs. Brown, 45 Mo. 412; 2 Greenl. Ev., § 305.

NORTON, Judge, delivered the opinion of the court.

This was a suit in ejectment, to recover a lot in Carthage, Jasper county. The petition is in usual form, and the answer contains a general denial. On the trial, plaintiff obtained judgment, from which defendant has appealed. The evidence tends to show that one S. N. Hostetter was, on the 7th day of February, 1873, in possession of the lot in controversy, claiming it as his own, and that defendant was in possession of the same on the 16th day of September, 1873.

Plaintiff offered in evidence the following deeds:

A mortgage deed from S. N. Hostetter, dated February 7th, 1873, to Meyers & Mohr, to secure the payment of a note for $620.44. This deed contained a power of sale, and was filed for record in the recorder's office of Jasper county on the day of its execution;

Also, a deed from said Meyers & Mohr, to one Griswold, dated August, 30th, 1873, and a quit-claim deed of the latter date to plaintiff, Miller. The defendant objected to the introduction of all the deeds, upon the ground that no title had been shown to be in Hostetter, which objection was overruled. The plaintiff offered evidence tending to prove that in the summer of 1873 he went into the possession of the lot under a contract of purchase from S. N. Hostetter, who had executed the mortgage above referred to. The defendant, who was the only witness on the part of the defense, testified that he contracted with Hostetter for the property in July, who furnished him with an abstract of title, which, upon examination, covered property which he already owned; that he then rescinded the contract, and went into possession on his own title.

All the questions presented in the case arise upon the action of the court in giving the following instruction:

“The court instructs the jury that if they believe from the evidence that S. N. Hostetter was in possession of the premises in controversy, claiming them as his own on the 7th day of February, 1873, and that Hostetter executed to Meyers & Mohr the mortgage offered and read in evidence, and that Meyers & Mohr sold said property under said mortgage, and that S. B. Griswold purchased the same, and that Griswold conveyed the same to plaintiff, Ezra Miller, and that defendant entered into possession of the same under said Hostetter, subsequent to said mortgage, under a contract of purchase or otherwise, they will find for plaintiff.”

It is well established that in ejectment, where plaintiff and defendant claim through a common source of title,...