Bradstreet v. Kinsella

• Decision Date: 31 October 1882
• Citation: 76 Mo. 63
• Parties: BRADSTREET v. KINSELLA, Appellant.
• Court: Missouri Supreme Court

76 Mo. 63

BRADSTREET

v.KINSELLA, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

AFFIRMED.

R. S. Moore and Taylor & Pollard for appellant.

C. H. Mansur and L. T. Collier for respondent.

HENRY, J.

This is an action of ejectment for lot No. 2 of the northwest quarter and east half of north half of lot 3 of southwest quarter of section 19, township 58, range 22, in Livingston county. There was a trial of the cause in the Livingston circuit court, resulting in a judgment for plaintiff, from which defendant has appealed.

Both parties claim under Stanford Graves. Plaintiff's evidence consisted of a deed from said Graves and wife to Morris Knight, executed in May, 1860; deed from Knight and wife to plaintiff, executed in October, 1860, with testimony relative to the monthly value of the premises and damages.

Defendant's evidence consisted of a deed from plaintiff to J. J. Miller, dated August 29th, 1861, conveying the lands in controversy to said Miller, in trust “for the sole use and benefit of Minerva D. Bradstreet, the wife of said Edward P. Bradstreet, her heirs and representatives, until such time as she, or they shall in writing request him, the said trustee, to convey said premises unto such party or parties as she or they may designate, and with such request said Miller shall at all times comply;” a deed from the sheriff of Livingston county, dated May 12th, 1864, conveying the interest of Stanford Graves in the land in question to T. B. Jones; and a quit-claim deed from said Jones to defendant, dated October 21st, 1865. The last two deeds were offered merely to show color of title, and the real defenses relied upon, are the statute of limitations and that plaintiff had no title.

With respect to adverse possession, Jones, for defendant, testified, that he went to look at and was upon the land in September, 1864; that he set up two stakes on what he was told were two of the corners, and tried to ascertain the boundary lines; paid taxes on the land in 1865 for the taxes assessed for that year; thought he owned the land, and treated it just as he did his other lands which were, as this, too wet and swampy for cultivation. Defendant testified, that he went into possession of the land in October, 1865, and had paid taxes on it ever since; that it was assessed to him, and he had always treated and used it as his own; had taken firewood from it each year, and the land had been recognized and known in the community as his; that it is too wet for cultivation.

Plaintiff, in rebuttal, introduced in evidence a copy of the last will and testament of Minerva D. Bradstreet, with the probate thereof, duly authenticated under the act of Congress, containing the following clause: “Third, I give and bequeath to my dear husband, Edward P. Bradstreet, all the residue of my real estate, and all my interest in any, wherever situated.” It is conceded that the land in controversy was not otherwise disposed of by the will. The will was admitted to probate in the probate court of Hamilton county, Ohio, and the defendant's objection to it as evidence, was that it had never been filed or recorded in the probate court of Livingston county, Missouri, or recorded in any other office in this State, and that the will had never been probated in accordance with the laws of this State. Plaintiff then introduced a deed from J. J. Miller, trustee of said Minerva Bradstreet, conveying said land to plaintiff, to which defendant objected, because the notary's certificate of acknowledgment was not in substance as required by the statute of Missouri.

On the foregoing testimony the court, for plaintiff, instructed the jury: That the deeds from Graves to Knight and from Knight to plaintiff, and from plaintiff to Miller, and from...