Brown v. Carter

• Decision Date: 28 February 1873
• Citation: 52 Mo. 46
• Parties: JOSHUA BROWN, Respondent, v. THOMAS CARTER, Appellant.
• Court: Missouri Supreme Court

52 Mo. 46

JOSHUA BROWN, Respondent,

v.THOMAS CARTER, Appellant.

Supreme Court of Missouri.

February Term, 1873.

Appeal from Daviess Common Pleas.

James McFerran, for Appellant, cited: Cochran vs. Whitesides, 34 Mo., 417.

Allen H. Vories, for Respondent.

EWING, Judge, delivered the opinion of the court.

This was an action of trespass under the statute to recover treble damages for removing from the land described in the petition certain fencing.

The answer denied the allegations of the petition, and for further defense to the action alleged that defendant being the owner of a larger tract, including the parcel of land on which the trespass is claimed to have been committed, conveyed the said last mentioned tract by deed of gift to his son John Carter, and being in doubt as to the true boundary between them, in reference to the fence, reserved said fence, and that in the sale of the same subsequently by his said son, to the plaintiff's intestate, a similar reservation was made of said fencing for his, defendant's benefit, and as his property. The answer also alleges possession by the defendant of said fence continuously both before and after the purchase of the land on which it stands by the defendant, and that it formed part of the enclosure of his farm, which farm was in his possession at and before the commencement of the suit.

The Court sustained a motion of plaintiff to make the answer more definite and certain, to which defendant excepted; and failing to file an amended answer, there was an inquiry of damages by a Jury, and a verdict for plaintiff for $87.75, and a judgment for treble that sum rendered by the court.

A motion for a new trial being overruled, defendant excepted, and brings the cause to this Court by Appeal.

The record presents but a single point for our consideration, namely, the ruling of the court, in sustaining the motion, to make more definite and certain, defendant's answer. The motion applied to the whole answer, as well as to that part which traversed the allegations of the petition, as to the new or affirmative matter which, it is claimed, constituted a defense to the action.

This new matter, as already stated, consisted of an alleged reservation of the fencing, both at the time of the conveyance to a son of defendant, and to the plaintiff's intestate. How this reservation was made, what the conditions, if any, does not appear. But so far as it may involve the Statute of Frauds, the presumption is in favor of its validity. (Gist vs. Eubank, 29 Mo., 248.)

Although it may have turned out on the trial that such reservation was no bar to the...