Burch v. Winston

• Decision Date: 31 July 1874
• Parties: O. G. BURCH, Defendant in Error, v. T. M. WINSTON, et al., Plaintiff in Error.
• Court: Missouri Supreme Court

57 Mo. 62

O. G. BURCH, Defendant in Error,

v.T. M. WINSTON, et al., Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1874.

Error to Cole Circuit Court.

E. L. Edwards & Son, for Plaintiff in Error.

E. L. King & Bro., for Defendant in Error.

VORIES, Judge, delivered the opinion of the court.

This was an action of ejectment, brought by the plaintiff in the Cole Circuit Court, on the 19th day of November, 1869, to recover from the defendants a lot of land in Jefferson City, known as inlot eight hundred and thirty-one.

The petition was in the usual form.

The defendants by their answer denied the allegations of the petition, and then set up the statute of limitations, charging that neither plaintiff, his ancestors, predecessors, grantors or persons under whom he claims, was seized or possessed of the premises described in plaintiff's petition, within ten years before the commencement of the action. The defendants also set up a further special plea which we need not notice, as with any view of the case the whole controversy depends on the plea of the statute of limitations. The plaintiff replied denying the new matter set up in the answer.

On the trial of the cause, the plaintiff offered in evidence a deed from Daniel Rice, as commissioner of the permanent seat of government, purporting to convey the lot in controversy to the plaintiff. This deed purported to have been executed on the 8th day of June, 1868.

The defendants objected to this deed, for the reason that said Rice had no authority to sell said lot. The court overruled the objection, and admitted the deed in evidence--to which the defendant excepted. As no objection is made to the form of the deed, it need not be set out here.

It was admitted by the defendants, that the lot in controversy was a part of the land donated by the United States to the State of Missouri, for a permanent seat of government.

The plaintiff then introduced defendant, Winston, as a witness in the case, ose evidence was in substance, that the lot sued for had been enclosed by him, and in its present condition was worth to him one dollar per month. On cross-examination he stated that he fenced the premises by the permission of defendant Young, and had the same in his possession for eleven or twelve years; that it would be twelve years in November, 1869; that he had it in cultivation during all of that time; that the rent of the lot would not be worth anything if it were not fenced. He further stated that he paid no rent for the lot; that at the time he took the possession of the lot it was unoccupied; that he held the lot during the time before stated, under Judge Young.

The defendants then offered in evidence a deed dated in 1866, purporting to have been executed to defendant Young and one Wells, by the collector of revenue of Cole County, upon a sale of the premises for taxes, commonly called a tax deed. This deed was objected to by the plaintiff, and the deed excluded by the court, to which the defendants excepted. It was then proved that the lot in controversy had been assessed to Young in the year 1868; that he had refused to pay the taxes, saying that the lot did not belong to him.

The defendant, in order to explain how it happened that he said in 1868 that the lot did not belong to him, offered to prove that he had employed an attorney in the year 1868, to write a deed conveying the lot to one White, to whom he said he had sold the lot, so as to have the deed ready to tender to said White. This evidence was objected to by the plaintiff, the objection was sustained by the court, and the defendant excepted.

There being no further evidence offered on either side, the court, at the request of the plaintiff, instructed the jury as follows:

“1st. If it appear to the jury that the lot in question was given to the State of Missouri by the United States, and that by deed of date 8th day of June, 1868, the Commissioner deeded said lot to plaintiff, they will find that the plaintiff is entitled to the possession of the lot, and they will find further from the evidence what damages plaintiff has sustained by reason of the detention of said lot--also they will find from the evidence the value per month of the rents and profits of said lot.”

“2nd. The jury are instructed that all evidence offered by the defendants...