Brewington v. Jenkins

• Decision Date: 31 October 1884
• Citation: 85 Mo. 57
• Parties: BREWINGTON, Appellant, v. JENKINS.
• Court: Missouri Supreme Court

85 Mo. 57

BREWINGTON, Appellant,

v.JENKINS.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Hannibal Court of Common Pleas.--HON. THEO. BRACE. Judge.

REVERSED.

T. H. Bacon for appellant.

(1) The court erred in excluding the certified copy of the plat in identification of the lines of the out-lots mentioned in the deeds. On this plat the north and south lines dividing lots two, three and four on the west, and lots five, six and seven on the east, also separated therein the abbreviation “qr.” on the west from the abbreviation “sec. twenty” on the east thereof, thus showing the lot lines coincident with lines of sectional division. In the deed of Stephen Glascock and the partition deeds of his grantees these lots were located in said northwest quarter, and the evidence identifying said plat as a diagram of the lots referred to was sufficient to warrants its admission. A deed of lots on an unrecorded plat will convey the title ( Mason v. Pitt, 21 Mo. 189), and the lines in the plat must yield to the deeds. Mincke v. Skinner, 44 Mo. 92; Neenan v. Smith, 50 Mo. 525. The tax receipts prima facie established the boundaries of the out-lots. St. Louis, etc., v. Risley, 40 Mo. 356. So the popular recognition of the lots is sufficient to identify them. Shewalter v. Pirner, 55 Mo. 218; Webster v Blount, 39 Mo. 500. (2) The court erred in sustaining the objection to the question to defendant as to his knowledge of the location of the north and south center line of section twenty. (3) The court erred in instructing the jury to find absolutely for the defendant, and in overruling motion to set aside non-suit. Kelley v. Hannibal, etc., 70 Mo. 604, 605; Woods v. Atlantic, 50 Mo. 112, 116, top.

D. H. Eby for respondent, filed no brief.

DEARMOND, C.

This is an action of ejectment against David Jenkins for four acres of land just inside the corporate limits of the city of Hannibal. Plea general denial, the ten year statute of limitations, and adverse possession by defendant, Jenkins, since 1866. Judgment for defendant and appeal by plaintiff. Since the appeal defendant, David Jenkins, died, and his heir, Rose E. Jenkins, and his widow, Sylvania Jenkins, have succeeded him as parties defendant.

Plaintiff introduced documentary evidence tending to show title in himself to lots ten, eleven and twelve, as a designated part of the northeast quarter of section twenty, township fifty-seven, range four, west, and in defendant, David Jenkins, to lots five and six, as being in the northwest quarter of the same section and immediately west of and adjoining said lots eleven and twelve. He claimed that defendant's fence was one hundred and twenty-six feet east of the true line between their respective lots, and for the strip, 1320 feet long from north to south, and one hundred and twenty-six feet wide from east to west, he sued. He introduced oral evidence tending to show the location of the tracts designated as lots ten, eleven and twelve, and of those designated as lots five and six, and that the dividing line aforesaid ran through defendant's enclosure, one hundred and twenty-six feet west of defendant's fence. He also introduced tax receipts showing that he and those under whom he claimed had for many years paid the taxes on all the lots in the northeast fractional quarter of said section twenty. Also evidence tending to show that defendant recognized that his fence was beyond his line, and that he had no right to such portion of his inclosure as lay east of the north and south center line through said section twenty, and had asked that he be not required to move his fence in saying that he would buy the northeast quarter of section twenty, whenever it was put on the market. The plaintiff offered in evidence a certified copy of an old plat, filed for record and recorded in the recorder's office...