Bingham v. Edmonds

• Decision Date: 28 March 1919
• Docket Number: No. 19923.,19923.
• Citation: 210 S.W. 885
• Parties: BINGHAM v. EDMONDS et al.
• Court: Missouri Supreme Court

210 S.W. 885

BINGHAM v. EDMONDS et al.

No. 19923.

Supreme Court of Missouri, Division No. 1.

March 28, 1919.

Appeal from Circuit Court, Ripley County; J. P. Foard, Judge.

Action by Ben Bingham against Robert M. Edmonds and others. From judgment in favor of defendants, plaintiff appeals. Affirmed.

This is an ordinary action of ejectment, commenced on April 23, 1915, in the circuit court of Ripley county, Mo., and tried on an amended petition filed May 13, 1915, in which plaintiff sought to recover possession of the northwest quarter of the southeast quarter of section 24, in township 24, north of range 2 east, located in above county. The petition charges that on March 28, 1914, plaintiff was the owner in fee and entitled to the possession of above-described real estate; that on April 1, 1914, defendants entered into possession of said land, and unlawfully withholds from plaintiff the possession thereof, to his damage in the sum of $100; that the monthly rents and profits of said real estate are $2.50, etc.

Defendants, in their answer, deny all the allegations of said petition. They allege that they have been in the open, notorious, hostile, adverse, peaceable, and continuous possession of a part of the lands described in plaintiff's petition for the space of 10 years and more next before the filing of this suit, claiming to own the same; that the land claimed by defendants, which has been in their possession as aforesaid, is a strip off the east side of the northwest quarter of the southeast quarter aforesaid; that defendants disclaim any right or title in the remainder of said land described in petition.

The evidence in the case tends to show that at the commencement of this action, on April 23, 1915, plaintiff was the apparent record owner of the northwest quarter of the southeast quarter of section 24, township 24 north, range 2 east, in Ripley county, Mo.; that defendants were the apparent owners, and in possession of the northeast quarter of the southeast quarter of said section 24, lying east of plaintiff's land; that defendants are in possession of a strip of land, containing between three and four acres, running from north to south across the east side of said northwest quarter of the southeast quarter of section 24; that said strip, as shown by one of the surveys, is about 66 feet wide at the north end and about 171 feet wide at the south end; that said strip is fenced, has been inclosed and in possession of defendants and those under whom they claim title, for more than 25 years before the commencement of this action. Defendants claim title to this strip by 10 years and more of adverse possession, and deny that they were in possession of the remainder of said northwest quarter of the southeast quarter of section 24.

The trial court found all the issues in favor of defendants, and entered judgment accordingly, leaving the only question open before us for consideration as to whether or not there was substantial testimony offered by defendants as to their title by adverse possession.

Plaintiff filed his motions for a new trial and in arrest of judgment, both of which were overruled, and an appeal was granted him, through error, to the Springfield Court of Appeals, but the case was duly transferred to this court.

Chas B. Butler, of Doniphan, for appellant.

James F. Fulbright, of Doniphan, and Sheppard & Sheppard, of Poplar Bluff, for respondents.

BAILEY, C. (after stating the facts as above).

1. In an ordinary action of ejectment, where a jury is waived, and the case tried by the court without instructions asked upon either side, the finding and judgment of the court below, if there is substantial evidence upon which to base the same, is conclusive upon this court, unless error has been committed in the admission or rejection of testimony. Boas v. Branch, 208 S. W. loc. cit. 86; Walker v. Roberts et al., 204 S. W. loc. cit. 18; Roloson v. Riggs, 274 Mo. loc. cit. 528, 203 S. W. loc. cit. 975; January v. Harrison, 199 S. W. loc. cit. 937; In re Lankford Estate, 272 Mo. loc. cit. 8, 197 S. W. 147; St. Louis, to Use, v. Parker-Washington Co., 271 Mo. loc. cit. 241, 242, 196 S. W. 769; Nicholson v. Wright et al., 196 S. W. loc. cit. 1118; Truitt v. Bender, 193 S. W. loc. cit. 839; Kille v. Gooch et al., 184 S. W. loc. cit. 1160; Laclede Land & Improvement Co. v. Goodno, 181 S. W. loc. cit. 412; Buford v. Moore, 177 S. W. loc. cit. 872; Hatton v. St. Louis, 264 Mo. loc. cit. 646, 175 S. W. 888; Abeles v. Pillman, 261 Mo. loc. cit. 376, 168 S. W. 1180; Heynbrock v. Hormann, 256 Mo. loc. cit. 37, 164 S. W. 547; Slicer v. Owens, 241 Mo. 319, 145 S. W. 428; Minor v. Burton, 228 Mo. 558, 128 S. W. 964; Bond & Stock Co. v. Houck, 213 Mo. loc. cit. 426, 112 S. W. 242; Vincent v. Means, 207 Mo. loc. cit. 713, 106 S. W. 8; Hunter v. Wethington, 205 Mo. loc. cit. 292, 293, 103 S. W. 543, 12 Ann. Cas. 529; Hamilton v. Boggess, 63 Mo. loc. cit. 251, 252. The issue as to whether defendants, or either of them, were in the unlawful possession of any portion of the northwest quarter of the southeast quarter of section 24 supra, outside of the inclosed strip heretofore mentioned, was decided upon substantial testimony in favor of respondents by the trial court, and its action, in respect to this matter, is hereby sustained.

2. Did defendants produce substantial testimony tending to support their claim of title by adverse possession as to that portion of the northwest quarter of the southeast quarter of section 24 aforesaid which they held by virtue of their inclosure? In referring to the evidence of defendants upon this subject, plaintiff, in his brief, at pages 2 and 3, said:

"The testimony shows that defendants acquired their land, the northeast quarter of the southeast quarter of said section 24, by inheritance from their father; that at the time he bought the land from one Crook, the said Crook showed him the line which ran through this field; that defendants' ancestor had always claimed to this line, which was west of the true line as shown by the surveys, and that they claimed through him to this line, and that these defendants and their ancestor had had more than 10 years' peaceable and continuous possession of this strip to the line shown by Crook and to which defendants claim."

Mrs. L. B. Edmonds, one of the defendants, testified that she is the mother of R. M. Edmonds; that it was her husband who bought the northeast quarter of the southeast quarter of section 24, supra, from Crook; that her husband died 19 years...