Black v. Howerton

• Decision Date: 18 February 1922
• Docket Number: No. 22686.,22686.
• Citation: 237 S.W. 471
• Parties: BLACK v. HOWERTON.
• Court: Missouri Supreme Court

237 S.W. 471

BLACK v. HOWERTON.

No. 22686.

Supreme Court of Missouri, Division No. 2.

February 18, 1922.

Appeal from Circuit Court, Adair County; James A. Cooley, Judge.

Action by A. E. Black against D. H. Howerton. From a judgment for defendant, plaintiff appeals. Affirmed.

On September 27, 1919, plaintiff commenced this suit in the circuit court of Adair county, Mo. He alleges in petition: That he is the owner of the real estate in controversy, located in Adair county aforesaid, and described as follows: Beginning at the northwest corner of the southeast quarter of the northeast quarter of section 28, township 61, range 13; thence south 12 feet; thence on a direct line to a point 18 inches south of the northeast corner of the aforesaid 40-acre tract; thence north 18 inches; thence due west to the place of beginning. That defendant is in possession of said lands, and makes some claim of ownership therein, the exact nature of which plaintiff cannot state, because to him unknown. That the rental value of said land is $1 per acre. The petition concludes with a prayer for general relief, and the court is requested to ascertain and determine the respective rights and interests of the parties hereto, in and to said lands, etc. On April 19, 1920, defendant filed an amended answer, on which the cause was tried, which contains a general denial. It further alleges that plaintiff claims to own the southeast quarter of the northeast quarter of section 28, township 61, range 13, in Adair county, Mo.; that the defendant and those under whom he derives title have continuously owned the northeast quarter of the northeast quarter of said section 28, township 61, range 13, for more than 25 years last past, and that they have actually occupied the same as owners thereof during all that time, claiming title thereto in fee; that about 25 years ago the then owners of said respective tracts of land mutually agreed upon, ran, and marked out the division line between said tracts, which has ever since been the division line between said tracts of land, and has always been recognized and acquiesced in, by the respective owners of said tracts of land, as such; that defendant, and those under whom he derives title to said northeast quarter of the southeast quarter of said section 28, have claimed title in fee to said division line, and have had actual, exclusive, open, uninterrupted, notorious, adverse possession of said northeast quarter of the southeast quarter of said section 28, up to said line, for more than 25 years next before the bringing of this action; that the tract of land claimed by plaintiff in his petition is a part of defendant's land above described; that the land so claimed by plaintiff lies north of said division line. The answer concludes with a prayer for general relief, and the court is asked to declare said boundary line to be the true line between said parties, and that defendant is the owner of the real estate in controversy.

The trial court found the issues in favor of defendant and entered its judgment accordingly. Plaintiff's motion for a new trial was overruled, and he appealed the case to this court.

E. O. Jones, of La Plata, and Campbell & Ellison, of Kirksville, for appellant.

Higbee & Mills, of Kirksville, for respondent.

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

I. This is an action at law, and was tried by the court without a jury and without instructions. In compliance with plaintiff's request, the trial court made a separate finding of law and facts as follows:

Plaintiff claims title by virtue of a warranty deed, dated about February, 1914, conveying to him the southeast quarter of the northeast quarter of said section and other lands, claiming that the strip described in the petition is a part of said 40-acre tract. Defendant claims that, if said strip is a part of the above-described 40-acre tract, he, the defendant, has acquired title to and owns same by adverse possession, and claims there was an agreed line between plaintiff and defendant.

The court finds from the evidence that, according to the survey referred to in the evidence said strip of ground is a part of the governmental subdivision described as the southeast quarter of the northeast quarter of said section 28, township 61, range 13; the north line of said strip being the correct line of said governmental subdivision and being referred to herein as the "true line."

Defendant, about March 1, 1908, acquired by warranty deed land described in his deed as the northeast quarter of the northeast quarter of said section 28, towhship 61, range 13, taking possession March 1, 1908, add having been continuously in possession since.

At the time when defendant bought and when plaintiff bought there was a fence separating the two tracts of land mentioned; but plaintiff insists that this fence is not on the true line, and that he owns to the true line above referred to, while defendant claims to the fence. Treating this line as a division fence, serving to inclose plaintiff's land on the north and defendant's land on the...