Arcadia Timber Co. v. Harris

• Decision Date: 10 November 1924
• Docket Number: No. 24039.,24039.
• Citation: 285 S.W. 428
• Parties: ARCADIA TIMBER CO. et al. v. HARRIS.
• Court: Missouri Supreme Court

285 S.W. 428

ARCADIA TIMBER CO. et al. v. HARRIS.

No. 24039.

Supreme Court of Missouri, Division No. 2.

November 10, 1924.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by the Arcadia Timber Company and others against 0. B. Harris. From the judgment, plaintiffs appeal. Reversed and remanded, with directions.

Hugh B. Pankey, of Kennett, for appellants.

James A. Bradley and James V. Billings, both of Kennett, for respondent.

HIGBEE, C.

This is an action to determine title to lot 1 of the northeast quarter of section 25, township 18, range 9 east, in Dunklin county, Mo., as provided by section 1970, R. S. 1919. The answer is a general denial, and asserts that defendant is the owner in fee of all that part of lot 1 contained in the west half of the northeast quarter of section 25, and claims title by adverse possession. Appellants, in their brief, say:

"This case was tried below on one issue only, namely, whether or not the respondent, 0. B. Harris, had had such possession of the land in controversy as would constitute adverse possession under what is commonly known as the ten-year statute of limitations."

At the conclusion of the evidence the court, by defendant's instruction No. 1, directed the jury to find a verdict for the defendant upon the issue of the statute of limitation "as to that part of lot 1 in the east half of the west half of the northeast quarter of section 25, township 18, range 9, being 38 acres, more or less, the said land in controversy between plaintiffs and defendant." The jury returned the following verdict:

"We, the jury, find the issues joined in the above-entitled cause as follows: We find that defendant, by possession under the statute of limitation, is the owner of that part of lot No. one (1) which is situated in the east half of the west half of the northeast quarter of section twenty-five (25), township eighteen (18), range nine (9) east, in Dunklin county, Mo., and is entitled to the possession thereof; and we find that plaintiffs are the owners of the remainder of said lot No. 1 and entitled to the possession thereof."

The judgment, after reciting the verdict, concludes:

"Wherefore it is considered, ordered, and adjudged by the court that plaintiffs take nothing by this writ and the defendant go hence without day and collect his costs in this behalf expended."

After motions for new trial and in arrest were overruled, the plaintiffs appealed.

1. It is contended by appellants that the evidence failed to make a submissible case on the defendant's claim of title by adverse possession, and that the court erred in admitting evidence and in giving and refusing instructions. No complaint, however, was made in the motion for new trial of the giving of the instruction heretofore set out directing a verdict for the defendant, in accordance with which the verdict was found. Appellants must therefore be deemed to have waived all objections to and acquiesced in the giving of this instruction, which directed a verdict for the defendant on the issue of adverse possession contrary to their contentions. Other alleged errors are therefore immaterial. "It is necessary that errors...