Smith v. H. D. Williams Cooperage Company

• Decision Date: 17 March 1903
• Citation: 73 S.W. 315,100 Mo.App. 153
• Parties: JOHN N. SMITH, Respondent v. H. D. WILLIAMS COOPERAGE COMPANY, Appellant
• Court: Missouri Court of Appeals

73 S.W. 315

100 Mo.App. 153

JOHN N. SMITH, Respondent
v.
H. D. WILLIAMS COOPERAGE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 17, 1903

[73 S.W. 316]

Appeal from Butler Circuit Court.--Hon. J. L. Fort, Judge.

REVERSED.

STATEMENT.

The suit was begun before a justice of the peace to recover one carload of stave bolts alleged to be of the value of $ 75, and alleged to have been shipped to defendant from Hendrickson, by one Robert Byrkett, on or about the first day of December, 1900.

After the service of summons on defendant, but before the day set for trial, defendant filed the following affidavit with the justice:

"Now comes John Runnette, in the above entitled cause, in behalf of defendant herein, and says that the timber in question was cut on the land belonging to him, and that he had sold said timber to Robert Byrkett, the grantor of defendant herein, and that the said J. N. Smith does not own the land from which said timber was cut, and the question to be decided in this cause is one affecting the title to the land on which said timber was cut. "JOHN RUNNETTE,

"Per M. R. Lare, Agt."

and moved that the cause be certified to the circuit court which was done.

In the circuit court the issues were submitted to the court sitting as a jury.

Plaintiff to sustain the issues on his part offered the following evidence: First, the evidence of plaintiff, who testified as follows:

"I am in possession of the north half of the northwest quarter of section twenty-eight, and the north half of the northeast quarter of section twenty-seven, township twenty-six north, range five east. The stave bolts replevied in this action were made by W. R. Byrkett, from white oak trees that were growing upon that tract of land, and the staves when made were sold by Byrkett to the defendant. The bolts sued for were worth more than seventy-five dollars. The timber was cut without my knowledge, permission or consent. I have claimed to own the land since I purchased at tax sale in September, 1878. I paid the taxes one or two years, and would have paid all of the taxes, but found on application to the collector other parties had paid them. The lands from which these stave bolts were cut adjoins my home place, upon which I have lived for forty years. My home place is the northeast quarter of section twenty-seven, township twenty-six north, of range five east. Since I purchased at tax sale, in 1878, I have used the land that I then bought for the purpose of cutting wood for fuel and fence rails, in connection with my home place, for all such purposes as land not inclosed or improved is usually used in connection with other land. When the parties who cut this timber, which was afterwards replevied, were cutting, I went to them and told them not to cut; that the land was mine and not to move the timber."

On cross-examination the plaintiff testified:

"I neither own nor claim any land in section twenty-eight, other than the north half of the northeast quarter; that on the north half of the northwest quarter of section twenty-seven, and the north half of the northeast quarter of section twenty-eight, township twenty-six north, range five east, there was never any improvement, inclosure or structure, but the land was and always has been quite wild. I claim title to the land from which this timber was cut by virtue of a tax deed, dated September 17, 1878, made by the State of Missouri, through Charles W. Addy, collector of Butler county, and recorded September 20, 1878, in book M, at page 213. I have no other claim on the land or timber."

Second, the following tax deed:

"Know all men by these presents, that, whereas at the July adjourned term, 1875, of the county court of Butler county, Missouri, a judgment was obtained in said court in favor of the State of Missouri, against the following described tract of land, situated in said county of Butler and State of Missouri, viz.:

No. of	Quantity	Parts of	Section	Township	Range	Years	Am't of
Tract	Sections,	for	taxes
number of	which	interest,
Surveys, Towns,	taxes	costs and
Cities and	are due	penalties.
Additions.
Acres	100
ths.

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