Coleman v. Drane

• Decision Date: 05 June 1893
• Citation: 22 S.W. 801,116 Mo. 387
• Parties: Coleman v. Drane, Appellant
• Court: Missouri Supreme Court

22 S.W. 801

116 Mo. 387

Coleman v. Drane, Appellant

Supreme Court of Missouri, First Division

June 5, 1893

Appeal from Mississippi Circuit Court. -- Hon. H. C. O'Bryan Judge.

Affirmed.

Wilson & Moore, with William Carter, for appellant.

(1) The court erred in permitting the plaintiff to amend his petition on the trial of the case by causing to be inserted in the record the amendment he desired to be made, over the objections of the defendant, and in that the court refused to require plaintiff to file an amended petition setting out and in the same, his entire cause of action in one pleading. Revised Statutes, 1889, sec. 2107, p. 553; Ward v Davidson, 89 Mo. 455; Calahan v. McMahan, 33 Mo. 110; Basoye v. Ambrose, 28 Mo. 39. (2) The court committed error in failing or refusing to rule upon the objections made by defendant to testimony offered by plaintiff and permitting the same to go to the jury without ever passing upon the competency of the same at any time during the progress of the trial, as was done in this case, this being a jury trial. (3) The court committed error in his instructions or charge to the jury in that he directed the jury that there were three specific issues they were called upon to pass on or try in the case. Major's Heirs v. Rice, 57 Mo. 384-388. (4) The court erred in its instruction on the matter of the bar of the statute of limitations in that it did not tell the jury the number of years necessary to create the bar.

J. J. Russell for respondent.

(1) The supreme court will not reverse a judgment on a mere question of disputed evidence. (2) Where one of two adjoining land-owners only claims to the true line, the statute of limitations does not apply. Krider v. Milner, 99 Mo. 145; Schad v. Sharp, 95 Mo. 573. (3) The matter of the amendment of the petition was not assigned for error in the motion for a new trial. Parker v. Straat, 39 Mo.App. 616; Turner v. Johnson, 95 Mo. 451. (4) The instructions given by the court of its own motion properly presented the three issues of the case. It was the duty of appellant to have asked instructions if not satisfied with those given. Tetherow v. Railroad, 98 Mo. 86. Since the statutes of 1865 have been in force, limitations has not run against school lands. Revised Statutes 1889, sec. 6772; Revised Statutes 1865, sec. 7, p. 746. Respondent insists that there was no error in the trial of this case, or, if any, that it was entirely harmless and that the verdict was clearly for the right party, and the judgment should be affirmed. Noble v. Blount, 77 Mo. 235; Deal v. Cooper, 94 Mo. 62; Fortune v. Fife, 105 Mo. 433; Revised Statutes 1889, sec. 2303.

OPINION

Macfarlane, J.

-- This suit is ejectment to recover a strip of land containing about four acres off the north side of the northeast quarter of the northeast quarter of section 33, township 26, range 16, in Mississippi county. Defendant owned and was in possession of the southeast quarter of the southeast quarter of section 28 of said township and range, immediately north of and adjoining the said northeast quarter of the northeast quarter of section 33. There was no dispute that plaintiff had the paper title to said northeast quarter of the northeast quarter of section 33.

Defendant claimed, first, that his possession extended to the true line between the tracts; second, that he had been in the uninterrupted adverse possession of the land to the line now occupied claiming it as his own, for a time sufficient to bar the action; and, third, the line dividing the possession had been agreed upon, adopted and used by their respective grantors and had thus become the division line which plaintiff could not dispute. Upon these issues the case was tried.

To the plea of the statutes of limitation, plaintiff replied that to within ten years next before the commencement of the suit, the title to the land in dispute was held by the state for school purposes, and for that reason the statute did not begin to run until the title passed from the state.

I. It appears that after the jury was sworn plaintiff was permitted by the court to amend his petition by charging therein that the land in dispute was held by the state for school purposes to a period within ten years next before the commencement of the suit. This action of the court is assigned as error. We do not think this amendment changed, in the least, the issues to be tried. We are not able to see, and plaintiff did not undertake to show, how he could have been prejudiced by the amendment. No evidence was admitted under the amended petition that would not have been admissible under the original pleadings. In actions of ejectment it is not necessary to plead the statute of limitations in order that it may be available as a defense. Such defense can be made under a general denial. Stocker v. Green, 94 Mo. 280, 7 S.W. 279, and cases cited. It necessarily follows from this rule that testimony in rebuttal of the defense of adverse possession would also be admissible under the common form of a petition in ejectment and a general denial thereto.

II. Error is assigned to the admission of evidence offered by plaintiff, to which objection was made by defendant. We find, in the abstract of the record only one objection made by defendant, during the introduction of the evidence. On cross-examination of one of defendant's witnesses, while being questioned in reference to certain government witness trees, he was shown a chip, or the bark, from a tree, which showed figures and marks upon it. Counsel for defendant objected to the witness examining this wood, the court made no ruling, and it does not appear that any further notice was given to the matter. It does not appear that these marks and figures were shown to the jury, and how defendant's case could have been prejudiced by his own witness merely looking at the wood cannot be conceived.

III. In law cases the issues of fact that should be tried by a jury, unless waived, are formed by the pleadings, and not framed by the court, as may be done in equity cases. There can be no objection, indeed it may, in some cases, be advisable for the court to point out distinctly to the jury the issues of fact made by the pleadings and instruct them separately on each. There were three distinct issues formed by the pleadings in this case, and evidence was offered in support of each. If the instructions were otherwise faultless there was no error in instructing the jury on each of these issues separately.

IV. The northeast quarter of the northeast quarter of said section 33 was originally held by the state for the use of the public schools. Plaintiff claimed through a deed from the state to William J. Clark, dated December 11, 1889. The evidence was undisputed that defendant and his grantors had the strip of land sued for inclosed by fence and in actual use and cultivation for fifteen or twenty years before the commencement of the suit. It was also in evidence that as early as 1864 the southeast quarter of the southeast quarter of said section 28 was in the actual occupation of the grantors of defendant. We are able to find no evidence tending to prove that there was any actual possession by defendant's grantors of the land in dispute at that time, though there was slight evidence to the effect that firewood and building timber were taken therefrom in 1864 and 1865.

On this state of facts the court gave the following instruction "You are further instructed that if you find from the evidence that on or before the first day of January, 1866, Rhoda Lee or Jack Hagan claiming the lands in the southeast quarter of section 28, township 26, range 16, and in connection therewith claimed, used and occupied the strip of land in...