Cashion v. Meredith

• Citation: 64 S.W.2d 670
• Decision Date: 19 October 1933
• Docket Number: No. 30878.,30878.
• Parties: WILLIAM A. CASHION and GEORGE C. CASHION, Insane, By FREDERICK W. CASHION, His Guardian and Curator, v. JESSE I. MEREDITH, JOHN W. MEREDITH, EDWARD MEREDITH and ANNA MEREDITH CONNER, Appellants.
• Court: United States State Supreme Court of Missouri

64 S.W.2d 670

WILLIAM A. CASHION and GEORGE C. CASHION, Insane, By FREDERICK W. CASHION, His Guardian and Curator, v. JESSE I. MEREDITH, JOHN W. MEREDITH, EDWARD MEREDITH and ANNA MEREDITH CONNER, Appellants.

No. 30878.

Supreme Court of Missouri, Division 1.

October 19, 1933.

Appeal from Perry Circuit Court. — Hon. B.H. Boyer, Judge.

REVERSED AND REMANDED.

Robb & Robb for appellants.

(1) The count in ejectment and the count in partition were misjoined. A tenant in common, who has been disseized, cannot maintain partition against his cotenant. Armor v. Frey, 253 Mo. 480; Mastin v. Ireland, 8 S.W. (2d) 900. (a) But when respondents had the court render judgment in their favor on the first count they abandoned the second count. Mann v. Doerr, 222 Mo. 10. (2) The testimony offered by respondents tending to show that the land in controversy formed as an accretion to Jones Island was contradicted by the testimony of Jesse L. De Lassus, offered by appellants. The court should not have directed a verdict. Contradictions between witnesses are for the jury and not the court. Williams v. Ry. Co., 257 Mo. 112.

Samuel Bond, C.A. Killian and James T. Greenwell for respondents.

HAYS, J.

This action, brought in 1927, is in ejectment and for partition, pleaded in separate counts. A trial by jury on the ejectment count resulted in a verdict for plaintiffs as directed by the trial court. From the judgment rendered thereon the defendants appealed.

A small parcel of land is involved, some fifteen acres, situate in Perry County and lying along the east boundary of Spanish Grant No. 1843 confirmed to Charles Ellis and along the west line of the southeast fractional quarter of section 20, in township 36 north, range 12 east. The parcel is bounded on the east by what was formerly an arm of the Mississippi River and is in the record termed the "cut-off," which flowed between the mainland, — said survey No. 1843, — and Jones Island, said fractional quarter section being on the west side of said island. The cut-off has long since closed and become largely filled up, so that it has been for many years a mere depression, with water standing in it until within somewhat recent years. It appears that one Anderson Cashion owned this fractional quarter section at the time of his death in March, 1878, having acquired it from the entryman. The parcel in controversy was formed by accretion, the respondents contending the accretion attached as it was formed to the west side of said fractional quarter section, and the appellants contending it was added to the mainland, that is, the land within said survey. The United States survey of August 19, 1818, shows said southeast fractional quarter to consist of 25.41 acres, with its west boundary line in the form of a bow along and adjacent to the cut-off and with its east line the middle north and south line of said section. From the location of the northeast and southeast corners of survey 1843 the eastern line thereof, if extended, would run near said middle section line of said section 20 and nearly parallel with it, and would cut said fractional quarter section, in the form and of the acreage aforesaid, approximately half in two. Therefore, although the testimony is to the effect that the present depression mentioned is in the same location as the cut-off was in the beginning, it does necessarily seem in the light of the government survey that the accretion was formed by reason of the cut-off's recession westward from its location as shown on said survey, since the accretion does not appear upon the government plat.

In the ejectment count the respondents claimed to own the disputed parcel in fee as tenants in common, and laid ouster as of October 13, 1926, while in the count looking to partition they claimed to be contenants with appellants and to own 92/180 thereof. The appellants' answer, after admitting their possession, pleads the general issue and contains special pleas of title in themselves by adverse possession under the ten-year, the twenty-four-year and the thirty-year Statutes of Limitation.

The respondents filed no brief in this court and contented themselves with filing a motion to dismiss the appeal on the alleged ground that the brief of the appellants does not comply with our Rule No. 15, which requires an appellant's brief to contain a fair and concise statement of the facts of the case without reiteration, statement of law or argument. Although appellants' statement is not as helpful as it might have been made, we do not regard it as violative of our Rule 15. Disallowing this point, we proceed to an examination of the case on the merits.

Anderson Cashion, noted above, left as his sole heirs at law four children, Francis M. William J. and Nancy Cashion and Elizabeth A. Clifton. The respondents are children of said Nancy Cashion (who married a Cashion) and grandchildren of said Anderson Cashion, deceased. They claim title by inheritance from said deceased and through their mother, and also through an unrecorded quitclaim deed, dated in 1922, from certain great-grandchildren, executed to respondent William A. Cashion. The appellants, on the other hand, claim that the title of the parcel in question passed, together with a certain tract lying within Spanish Grant No. 1843, from Francis L. Jones and wife to Francis Douglass Jones by deed dated November 1, 1873, recorded in 1880, and by deed from Francis Douglass Jones and wife to Isaac Meredith of date July 16, 1880, recorded on the last date, and was also included in a quitclaim deed executed by the heirs of Francis L. Jones to Issac Meredith dated March 18, 1881, and recorded April 23, 1881. The appellants are the sole heirs at law of said Isaac Meredith, who died on March 25, 1925.

In the trial the respondents introduced the deeds in their said chain of title, including the original entry made by one Thorpe, as shown by the book of original entries, and all of the conveyances mentioned. All these, except the deed to William A. Cashion, purported to convey said southeast fractional quarter section. They introduced an official copy of the survey made by the government in 1818 and a copy of another such survey made in 1836; also the county surveyor's plat of the land in suit, made for respondents, portraying and identifying the parcel in suit as the latter is particularly described in respondents' petition and in said deed to William A. Cashion. There was evidence tending to show that the accretion attached to the island, and some slight evidence that it attached to the land lying west of the depression.

It appears from the evidence that Isaac Meredith went into possession of said tract of land lying west of and adjacent to the depression, it being a part of said Spanish Grant, as early as 1873 and began and thereafter continued to claim title to the accreted land, which was then in timber, and to cut timber therefrom for use on the land first mentioned. In behalf of appellants there was evidence tending to show that from that time on down to the time of his death said Meredith claimed ownership of the disputed accretion, openly, notoriously and continuously and, from time to time throughout said period, had cut timber off it for firewood, rails, posts, logs, poles for use in building corn cribs, and logs for use in building a barn, and also "excelsior" timber for sale. He completely cleared parts of the parcel and cultivated such parts by tenants. The parcel was sometimes referred to as "Meredith's Grove" and was so advertised in announcing picnies to be held there. There was evidence that a fence was maintained between the accretion and the land on the east thereof, by the owner of the latter, from an early date and the fence appeared to be old in 1894. This fence, which was of rails, was washed away in the flood of 1903, after which it was replaced with a wire fence that was still standing in 1922.

In 1922, about the time said deed to William A. Cashion was executed, Meredith procured an abstract of title of the accretion and of the land adjacent thereto on the west and had a survey and plat made of the same by the county surveyor. The evidence shows that after Isaac Meredith's death the appellants continued to assert claim and to exercise acts of dominion just as said deceased had done. This recital of the facts, if not altogether clear, will sufficiently serve for a consideration of the questions of law to be determined.

The errors assigned relate to the giving of certain instructions and the refusal of certain others; to the refusal to admit in evidence certain deeds and plats offered by the appellants; and to the sufficiency of the verdict.

With respect to the verdict, appellants contend it was too vague, uncertain, indefinite and insufficient in that it failed to describe the land in suit and the interests of respondents therein. This point is saved by motion in arrest of judgment. The jury by their verdict merely found "the issues in this cause in favor of the plaintiffs, and that the plaintiffs are entitled to the possession of their respective interests in the land described in the petition and that defendants are...