Allen v. Mansfield

• Decision Date: 31 October 1884
• Citation: 82 Mo. 688
• Parties: ALLEN, Appellant, v. MANSFIELD.
• Court: Missouri Supreme Court

82 Mo. 688

ALLEN, Appellant,

v.MANSFIELD.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Buchanan Circuit Court.--HON. W. H. SHERMAN, Judge.

AFFIRMED.

Allen H. Vories and E. O. Hill for appellant.

(1) The court erred in permitting defendant to testify that Mansfield, who was dead, gave her the lot, because Mansfield, one of the contracting parties, being dead, the other party could not testify, and because the declarations of Mansfield were not proper testimony to prove title in himself or defendant, or in disparagement of his title. 1 Greenleaf's Ev., §§ 109, 110. (2) The court erred in refusing to give plaintiff's instructions as asked. He had the right, under the law, to have them given or refused as asked, and the modification was equivalent to a refusal. There was no evidence to warrant such modification. Instructions must be based on the evidence. Doebling v. Loos, 45 Mo. 150; Ewing v. Goss, 41 Mo. 492. The instruction as to the statute of limitation was clearly erroneous. The plea in the answer was ten years prior to the commencement of the suit, while the instruction was ten years prior to 1877. The suit did not commence until 1881, leaving four years in which defendant might not have claimed the property. (3) Plaintiff's third instruction should have been given.

J. F. Pitt for respondent.

PHILIPS, C.

This is an action of ejectment to recover possession of the east part of lot 7, in block 44, in South St. Joseph. Ouster laid January 2nd, 1881. The answer tendered the general issue, and special plea of statute of limitation, and title by gift, and adverse possession.

The evidence on plaintiff's part tended to show that the lot in 1865 belonged to one Allen G. Mansfield. The lot was partitioned among his heirs and fell to Wm. A. Mansfield. The plaintiff bought the lot under a judgment against said William, and received a sheriff's deed therefor. The defendant was then in possession, and plaintiff called to see her. He testified that defendant told him that her old master, Allen G. Mansfield, told her she should live there as long as she lived; that she dug the well and built the house there, and paid for them by washing; that he told her he did not want anything of hers; that he might not want the lot for ten years, and if she had anything of worth he would pay her for it. This was in 1877. Two years after this plaintiff went on to the west part of the lot and put up a small house and built a fence there; that about this time she commenced quarrelling with him about the matter.

Her testimony was to the effect that in 1865, when she was about starting to move to some town with her children, her old master, Mr. Allen G. Mansfield, told her he would give her this lot if she would move on to it and live there; that he did not wish to see her dragging her children around. Mansfield built the cabin on the lot. She moved in in 1865, built a fence around the yard, dug a well and built some out-houses, and handed her old mistress money to pay the taxes. She had lived on the place continuously ever since, claiming title to it, etc. There was some corroborative testimony of her statements. Plaintiff claimed that no taxes had been paid save those paid by himself after the partition sale. The trial was had before a jury.

The plaintiff then asked the court to instruct the jury as follows:

1. That under the admissions made on the trial and the deed read in evidence, the plaintiff is entitled to recover in this suit

2. If the jury believe from the evidence that the defendant surrendered to the plaintiff the west end of said lot 7, and that he took possession of the same by her consent, and agreed to deliver up the possession of the east end thereof whenever required by plaintiff, then the defendant cannot set up any title in herself, and the jury will find for this plaintiff.

3 That if the jury believe from the evidence that Allen Mansfield told the defendant that she might occupy the premises in controversy during her lifetime, and that she only claimed the premises under the license of Mansfield prior to and up to the time that plaintiff purchased said lot, then such possession could not be adverse to Mansfield's heirs or their grantees, and her living upon said lot could not give her title to it.

All of which instructions the court refused, to which plaintiff at the time excepted.

The court then, against the consent of plaintiff, modified the first and second instructions as follows:

By adding to plaintiff's first instruction these words: “Unless the jury find from the evidence in this case, that more than ten years prior to 1877, Allen G. Mansfield placed defendant in possession of the lot in controversy to be by her held and owned by her as her property, and that for more than ten years prior to 1877, defendant occupied said lot openly, notoriously and adversely,” as her own.

And by adding to plaintiff's second instruction the words, “Provided at the time of such alleged surrender, if any was made, defendant knew she was surrendering her title to plaintiff, and with such knowledge consented to hold said lot as the tenant of plaintiff.”

To which modifications or additions the plaintiff at the time excepted.

The defendant then asked the court to instruct the jury as follows:

If the jury believe from the evidence that about the year 1865 Allen G. Mansfield had the possession of the premises described in plaintiff's petition surveyed, built a house thereon, and verbally gave the same to plaintiff, and put her in possession thereof, and that plaintiff has ever since said date been so in possession, claiming to own the same, and that such possession has been open, notorious and actual, under claim of ownership, then the jury will find for the defendant.

The jury returned a verdict for defendant. The plaintiff prosecutes this appeal from the judgment of the court based on said verdict.

I. It is assigned for error that the court permitted the defendant to testify to conversations between her and Allen G. Mansfield respecting the gift of this property to her. It is now claimed that he was dead at the time of this trial, and, therefore, she is disqualified to testify to such contract. If it were conceded that such fact worked a disqualification of the witness, the plaintiff has not sufficiently preserved the objection in the bill of exceptions. It appears only that he objected to a part of this testimony. No reason was assigned to the court for the objection. This is not enough. The party must state to the court the grounds of his objection, and the bill of exceptions must show what was the specific objection urged before the trial court against the admission of the given testimony. Otherwise it cannot be known that the question presented in the Supreme Court, as the basis of the objection, is the same upon which the circuit court was asked to pass. Roussin v. St. Louis Perp. Ins. Co., 15 Mo. 244; Clark v. Conway, 23 Mo. 442; Knipper v. Bechtner, 32 Mo. 255; Rosenheim v. Am. Ins. Co., 33 Mo. 230; Gillett v. Mathews, 45 Mo. 307.

II. Error is alleged in the giving and refusing of instructions. Counsel complain that the court, instead of refusing the instructions, as asked by him, gave them as amended by the court. This was tantamount to a refusal and gave the plaintiff the full benefit of his exception to the action of the court. Meyer v. P. R. R. Co., 40 Mo. 151.

III. The first instruction asked by plaintiff was properly refused. If the defendant's testimony was credited by the jury, the title to the lot was in the defendant, and the plaintiff was not entitled to recover. The amendment made by the court is assailed on the ground that it fixed the ten years'...