Bartlett v. O'Donoghue

• Decision Date: 31 October 1880
• Parties: BARTLETT v. O'DONOGHUE, Appellant.
• Court: Missouri Supreme Court

72 Mo. 563

BARTLETT

v.O'DONOGHUE, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

REVERSED.

The declaration of law given by the court on the subject of adverse possession was as follows: If the court should find from the evidence that at any time during the period in which the defendant claims to have acquired title to the lots in controversy by adverse possession, his possession was discontinued, and no vestige of adverse occupancy remained upon the lots, of a character calculated to give notice to the true owner of an adverse claim, the possession of defendant prior to such discontinuance cannot be considered as adverse to plaintiff or his grantors, nor can the defendant have any benefit of such adverse occupancy, unless such occupancy had been for the full period of ten years; and further, that during such discontinuance the possession of such lots is presumed in law to have been in the true owner, Herman F. Schmidt, or his heirs.

One of the grounds urged in the motion for new trial was, that the finding and judgment were against the evidence.

B. Pike for appellant.

Strong & Mosman and Vinton Pike for respondent.

HENRY, J.

This was an action of ejectment brought to recover possession of two lots in the city of St. Joseph. The plaintiff had judgment, and the defendant has appealed. At the trial, plaintiff showed title to the premises in controversy, in Hannah L. Hubucker, wife of Christian A. Hubucker, by inheritance from her father, Herman F. Schmidt, and thereupon introduced in evidence, without objection, a deed to himself for said lots, signed by Christian A. Hubucker and his wife, Hannah L. Hubucker, dated December 18th, 1874, but not acknowledged by either of them.

1. DEED: evidence: practice.

The court declared the law to be, that the conveyances offered in evidence by the plaintiff invested him with the legal title to the premises sued for. This instruction was excepted to when given, but was not brought to the attention of the court in the motion for a new trial. If, however, the deed signed by Hannah L. Hubucker and her husband, was ineffectual to pass any right of possession to the plaintiff, the judgment must be reversed for want of evidence to support it. The failure of the defendant to object to the introduction of this instrument in evidence, when offered, would dispense with any proof of its execution, but it could not impart to it any efficacy as a conveyance which it would not otherwise have. Being admitted in evidence...