Carter v. Macy

• Decision Date: 06 February 1912
• Citation: 144 S.W. 107,239 Mo. 518
• Parties: CARTER v. MACY.
• Court: Missouri Supreme Court

144 S.W. 107

239 Mo. 518

CARTER v. MACY.

Supreme Court of Missouri, Division No. 2.

February 6, 1912.

1. PLEADING (§ 127)—ISSUES—ADMISSIONS IN PLEADING.

Where in ejectment defendant, referring to a deed from S. to C., alleged that S. and wife subsequently conveyed the north 86 acres of a certain quarter section to C., etc., the validity of the deed to operate as a conveyance of such tract was thereby admitted, and hence defendant could not thereafter object that the deed was insufficient to convey title because of the omission of the word "acres" in the description.

2. EJECTMENT (§ 114)—RIGHT OF RECOVERY —EXCESS OF QUANTITY—GOVERNMENT SURVEY.

Where in ejectment plaintiff's right to recover was grounded on his title to 86 acres off the north side of the southwest quarter of a section, and the deeds under which he claimed title so described the land, plaintiff's recovery was limited to the land within the lines of the 86-acre tract, and it was error to render judgment for plaintiff for such a proportion of a strip of land forming an excess in the quarter section not within plaintiff's 86 acres as the 86 acres bore to the total quantity in the entire quarter section.

3. APPEAL AND ERROR (§ 1178)—REVIEW— REFORMATION OF JUDGMENT—NECESSITY OF RETRIAL.

Where in ejectment the judgment for plaintiff was erroneous as to a part of the land included in the judgment and it also awarded rents and profits as to all the lands for which judgment was rendered, including also that to which defendant disclaimed title or possession, but plaintiff offered to remit all rents and profits as a condition to the affirmance or modification of the judgment, a new trial will not be granted because of the error, but the judgment will be reformed and the cause remanded.

Appeal from Circuit Court, Daviess County; Francis H. Trimble, Judge.

Ejectment by Lawrence E. Carter against William C. Macy. Judgment for plaintiff, and defendant appeals. Modified and affirmed on condition.

Cruzen & Britton, for appellant. Boyd Dudley and J. A. Selby, for respondent.

KENNISH, J.

This is an appeal by the defendant in an ejectment suit from an adverse judgment of the circuit court of Daviess county. Respondent and appellant own adjoining lands in said county, and this suit was brought by the respondent to recover the possession of two narrow strips of land alleged to be in the possession of the appellant. The first tract is about two rods wide and about one-fourth of a mile in length. As to this tract, although appellant disclaimed in his answer both ownership and possession, he thereafter entered into a written stipulation with respondent, which was introduced in evidence, in which it was admitted that the defendant, at the commencement of the suit, was in possession of the lands in controversy. However, as appellant does not complain in this court of the finding against him as to such tract, it is thus removed from the zone of controversy, and will not be further considered or referred to. The other tract sued for is described in the petition as: "A strip of land three rods wide, north and south, and one-half mile long, east and west, off of the south side of the north eighty-six acres of the southeast quarter of section 13, township 59, range 27, in said county. Said strip of land being immediately north of the south 71 acres of said quarter section, and lies south of the fence as now built between the lands of the plaintiff and the defendant, and is within the inclosure of the defendant." It was agreed that Mounts Nichols, deceased, was the common source of title. The last will and testament of said Nichols was introduced in evidence by plaintiff, and by one of the provisions therein the said southeast quarter section, together with other lands, was devised to his six daughters named in the will. An amicable partition of the lands so devised was made in the year 1873 between the parties entitled, by which a tract of "eighty-six acres off the north side of the southeast quarter of section 13," etc., was set off and conveyed to a grantee through whom plaintiff acquired title, and a tract of "seventy-one acres off the south side of the southeast quarter of section 13," etc., was set off and conveyed to a grantee through whom defendant acquired title. Plaintiff and defendant acquired title by mesne conveyances, each of which described the lands as in the partition deeds.

There was testimony tending to prove that pursuant to such partition a survey was made by agreement, and large corner stones were buried in the ground, one on the east and one on the west, to mark the boundary line between the said two tracts of land. These monuments remained in position at the time of the trial. According to the government survey, the plat of which was introduced in evidence, the said quarter section contained 157.20 acres, and, accepting the said corner stones as fixing the true boundary line, the quantity of land on the north side is 86.20 acres, and on the south side 71 acres, from which it follows that the entire quarter section contains one-fifth of an acre more than the two tracts so partitioned and conveyed. The division fence...