Bricken v. Cross

• Decision Date: 12 June 1901
• Citation: 64 S.W. 99,163 Mo. 449
• Parties: BRICKEN v. CROSS et al.
• Court: Missouri Supreme Court

64 S.W. 99

163 Mo. 449

BRICKEN v. CROSS et al.

Supreme Court of Missouri, Division No. 1.

June 12, 1901.

LIMITATIONS — AMENDMENT OF COMPLAINT — NEW CAUSE OF ACTION — EJECTMENT — DEED — DESCRIPTION — INSTRUCTIONS.

1. Where, in ejectment, judgment for plaintiff is reversed on appeal on the ground that the petition did not describe the land embraced in the judgment, and the petition was thereupon amended, and it appeared that the first petition was defective because of clerical error, and the description in the second petition called for land mostly included in that probably attempted to be described in the original petition, but yet, if the error in the original petition had not occurred there was nothing to indicate to defendant where the land claimed was located, until the amended petition was filed, the amended petition was a new cause of action, and limitations ran in favor of defendants until the amended petition was filed.

2. An owner of land conveyed 20 acres in the east part of the west half of a certain quarter section, which description, if the quarter section was of the usual size and shape, — which fact did not appear, — would take all there was in the subdivision. Thereafter he conveyed 20 acres of the 30 acres in the west part of the east half of such quarter section. It was impossible to say from the deed where the south line and the west line of the 20 acres intended to be conveyed were to be drawn. Held, that an instruction which assumed to locate the 20 acres conveyed by such deed was erroneous.

Appeal from circuit court, Carroll county; W. W. Rucker, Judge.

Action by Thomas Bricken against Nathan Cross and Henry Diedering. Judgment for plaintiff. Defendants appeal. Reversed.

This is an action of ejectment. The original petition was filed April 4, 1894. This is the second appeal in the case. Bricken v. Cross, 140 Mo. 166, 41 S. W. 735. On the former appeal the judgment, which was for the plaintiff, was reversed on the ground that the petition did not describe the land embraced in the judgment, and the cause was remanded. Upon the return of the case to the circuit court, the plaintiff filed an amended petition, and the trial resulted again in a verdict and judgment for the plaintiff for a small part of the land sued for, from which the defendants take this appeal.

Hale & Son, C. R. Pattison, and Busby & Kneisley, for appellants. Sam Winfrey and Jas. L. Minnis, for respondent.

VALLIANT, J.

Upon the trial it was admitted that Benjamin F. Turner was the original owner, and both plaintiff and defendant claim title under respective deeds through him. The defendants also claimed title by adverse possession. The plaintiff read in evidence a deed to himself from Turner and wife, dated 29th July, 1882, conveying land under the following description: "All twenty acres off of the north end of the following described tracts of land, to wit: Thirty acres west part of the east ½ of the northeast quarter, also twenty acres in the east part of the west ½ of the northeast quarter, of section 17, in township 52, of range 22," in Carroll county. The defendants objected to the deed in evidence because the description of the land was not definite enough to show the location of the 20 acres that were attempted to be conveyed. The objection was overruled, and exception reserved. That deed, with evidence as to the value of the rents and profits, was all the evidence of the plaintiff in chief. Defendants offered a deed from Turner and wife to Samuel J. Snider, dated 17th October, 1881, conveying land described as follows: "All that part of the east ½ of the east ½ of the west half of the northeast quarter of section 17, in township 52, range 22, that lies between the Wakenda creek and the foot of the bluff, containing twenty acres, more or less." Then defendants traced title in defendant Diedering (who is the landlord of the other defendant) by mesne conveyances under Snider to the land conveyed in the deed. Their evidence tended to show that the public road referred to in the record is located at the foot of the bluff, and plaintiff's testimony in rebuttal was to the contrary. Defendants' evidence tended to show that they and their grantors under Snider had been in adverse possession of the land in dispute from some time in March or April, 1884, down to the present time. The original petition was filed April 30, 1894. In rebuttal the plaintiff introduced evidence tending to show that the possession of defendant's grantors did not begin until July, 1884. The verdict for the plaintiff was for only that small part of the land sued for which lies in the 30-acre tract mentioned. The instructions to the jury directed a verdict for the plaintiff for that part of the land which the verdict covered, unless the jury should find for the defendants on the issue as to adverse possession, and on that issue required the defendants to show 10 years' adverse possession prior to April 3, 1894, the date of filing the original petition; refusing an instruction asked by defendants fixing the date at 13th November, 1897, — the time of filing the amended petition.

1. The question of whether the date at which the defendants' 10 years' possession should have been complete, to give them title, should be that of filing the original, or that of filing the amended, petition, depends on the question of whether the amended petition merely restated in more accurate words the same cause of action that was stated in the original, or stated a different cause of action, or for the first time stated any cause of action at all. In Buel v. Transfer Co., 45 Mo. 562, the law was thus stated: "Where the amendment sets up no new matter or claim, but is a variation of the allegations affecting a demand already in issue, then the amendment relates to the commencement of the suit, and the running of the statute is arrested at that point; but where the amendment introduces a new claim, not before asserted, then it is not treated as relating to the commencement of the suit, but as equivalent to a fresh suit upon a new cause of action; the running of the statute continuing down to the time the amendment is filed." And a number of authorities are cited in the opinion in support of the rule. The correctness of this rule was recognized in the later case of Lilly v. Tobbein, 103 Mo. 477, 15 S. W. 618, and also in Courtney...