Dice v. Hamilton

• Decision Date: 25 November 1903
• Parties: DICE v. HAMILTON.
• Court: Missouri Supreme Court

77 S.W. 299

178 Mo. 81

DICE v. HAMILTON.

Supreme Court of Missouri, Division No. 1.

November 25, 1903.

ADVERSE POSSESSION—LIMITATIONS AGAINST STATE—EVIDENCE—TESTIMONY ON FORMER TRIAL — ADMISSIBILITY — APPEAL — OBJECTIONS TO EVIDENCE—WAIVER.

1. The statute (Gen. St. 1866, c. 191, § 7) taking effect August 1, 1866, and providing that nothing contained in any statute of limitation shall extend to any lands belonging to the state, was prospective only in its operation, and hence, where persons were in possession of state school lands prior to the taking effect of such action, and fenced such lands in 1865, limitations commenced to run against the state from such date.

2. In ejectment defendant offered what purported to be a transcript of the testimony of plaintiff in a former suit between the same parties, and the court decided that it was not properly before the court, because not made a part of the record in the former case by bill of exceptions; whereupon counsel for plaintiff stated that if defendant's attorney would swear that it was the testimony of plaintiff on the former trial it would, of course, be admissible, and the attorney was sworn and so testified. Held, that plaintiff could not complain on appeal that it was error to admit the testimony.

3. Plaintiff could not complain on appeal that, while the transcript of the evidence in a former suit might have been used to refresh the memory of the witness who made it, it was inadmissible as evidence in itself, he not having made such objection on the trial.

Appeal from Circuit Court, De Kalb County; A. D. Burnes, Judge.

Action by John W. Dice against Henry Hamilton. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

J. F. Harwood, for appellant. Hewitt & Blair, for appellee.

MARSHALL, J.

This is an action in ejectment for a triangular strip of land lying in the northwest quarter of the northeast quarter of section 16, of township 58, range 30, in De Kalb county, Mo., and described in the petition as follows: "Commencing at a point twenty-eight feet east of the northwest corner of said forty-acre tract, and running thence in a southwesterly direction to the southwest corner of said forty-acre tract." The petition is in the usual form, the ouster being laid as of December 2, 1897. The answer is a general denial, but the real defense is title by limitations. The trial court rendered judgment for the defendant, and plaintiff appealed.

The controversy will be more readily comprehended by an examination of the following plat:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

EXPLANATION.

Division line between N. W. of N. E. and N. E. of N. W. indicated by dotted line from letters A to C.

Land described in petition indicated by triangle A, B, C.

Private road 20' wide, lying 10' on each side of subdivisional line between land of plaintiff and defendant, indicated by heavy black lines D, E, F, G.

Land really in dispute is the triangle formed by B, H, and F.

All the land lies in section 16, township 58, range 30, De Kalb county. The plaintiff owns the northwest quarter of the northeast quarter of section 16, and the defendant owns the northeast quarter of the northwest quarter of section 16. Mrs. Martha Belk owns the 40 acres that lie south of the defendant's 40, being the south quarter of the northwest quarter of section 16.

Although the petition claims the triangle indicated on the plat by the letters A, B, C, and describes it as having a front of 28 feet on the north, along the line of the public road, the fact is that in 1892 Mrs. Belk, in order to obtain access to her land from the public road, caused the county court to condemn a private road 20 feet wide, from the northeast corner of her land to the public road running along the north line of section 16, whereby 10 feet were taken off of the land of each the plaintiff and defendant, the subdivisional line between the lands of the plaintiff and defendant being the center of the private road. Belk v. Hamilton, 130 Mo. 292, 32 S. W. 656. The private road is indicated on the plat by the letters D, E, F, G. In consequence of all which the land really in dispute in this case is the triangle indicated by the letters B, H, and F, and is 18 feet on the north, and running southwesterly to zero at the point H.

The plaintiff claims title to the land as being a part of the northwest quarter of the northeast quarter of section 16, and shows that he acquired title to said 40 acres by assignment from Samuel C. Rodgers, dated April 2, 1860, and that Rodgers was himself the assignee of Michael A. McCartney, who it is claimed originally purchased the land under the laws of this state. The land was originally school land, and was sold to McCartney for the sum of $2 an acre, but the date of such sale is not disclosed by the record. McCartney sold to Rodgers, but the date of sale and the price does not appear. Rodgers sold to the plaintiff, in 1860, for $372.50. But the patent of the state was never issued until November 15, 1897, and then it was granted to the plaintiff, "assignee of Samuel Rodgers, assignee of Michael A. McCartney."

The defendant has no title to the land in controversy, except such as rests upon the statute of limitations. The defendant derives his title to his 40 by a warranty deed from W. W. Curtis dated March 4, 1882, and has been in possession thereof ever since. Curtis acquired title from John E. Thomas by warranty deed dated January 15, 1881. Thomas acquired title from David Whittaker by warranty deed dated November 8, 1878. Whittaker acquired title from W. C. Moore by warranty deed dated July 17, 1865. Moore acquired title by warranty deed from William Munson dated March 2, 1864. Munson acquired title from Thomas Reed by warranty deed dated October 6, 1865, and Thomas Reed acquired title by a patent from the state dated April 24, 1874. These dates become important by reason of the contentions of the parties hereto.

The evidence shows that Moore went into possession of what he supposed to be his 40 in 1864, and that the plaintiff went into possession of what he supposed to be his 40 in 1860. Neither party seems to have had a very clear idea of where the division line between their lands ran. There were no government stones set showing such divisional lines. There is no dispute that the plaintiff has never been in possession of the triangular strip in controversy, but that the defendant has been in possession thereof ever since he purchased from Curtis in 1882, claiming it as a part of his 40, and that Whittaker, his mesne grantor, was in possession of it, claiming it also as a part of said 40, from August 7, 1865, until he sold it to Thomas, in 1878. In short, the evidence shows that the defendant and those under whom he claims title have been in possession of the strip in controversy, claiming it to be a part of the northeast quarter of the northwest quarter of section 16 since, at least, as early as March 2, 1864, when Moore purchased from Munson. Various surveys were made to establish the division line between the land of the plaintiff and the defendant, but each survey located the line at a different place. Some showed that the strip was a part of the land of the plaintiff, and some showed that it was a part of the land of the defendant. Neither party would accept the survey made at the instance of the other. Some time in 1888 this plaintiff brought a suit in ejectment against this defendant for the possession of said strip, and upon a trial of that case the judgment went in favor of the defendant.

When Whittaker purchased from Moore, in 1865, he had a survey made of the land, which showed this strip to be a part of the northeast quarter of the northwest quarter of section 16, and he had it fenced, and cultivated it, and claimed it, and it has been cultivated and claimed in the same manner by his grantees ever since. He and they claimed up to the fence on the one side, and the plaintiff likewise claimed to the fence on the other side. The evidence excludes the idea that the parties claimed only to the fence supposing it to be the true line, but without intending to set up any claim to it unless it was within the true line. There seems to have been no doubt in the mind of either party that the land belonged to the defendant until shortly before 1888, when the plaintiff had a survey made which showed it to be a part of his 40, and he then brought the prior ejectment suit above noted.

Upon the trial of this case the defendant...