Einstein v. Holliday-Klotz Land & Lumber Co.

• Decision Date: 24 April 1906
• Citation: 94 S.W. 296,118 Mo.App. 184
• Parties: EINSTEIN, Appellant, v. HOLLIDAY-KLOTZ LAND AND LUMBER COMPANY, Respondent
• Court: Missouri Court of Appeals

94 S.W. 296

118 Mo.App. 184

EINSTEIN, Appellant, v. HOLLIDAY-KLOTZ LAND AND LUMBER COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

April 24, 1906

Appeal from Wayne Circuit Court.--Hon. Frank Dearing, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Warren D. Isenberg and Munger & Ward for appellant.

John H Raney and James F. Green for respondent.

OPINION

BLAND P.J.

The petition alleged, in substance, that plaintiff is the owner and in possession of the following described real estate situated in Wayne county, Missouri, to-wit: Lots 1 and 2, northwest quarter, and lot 1, northeast quarter, section 6, township 26, range 4 east; that defendant wrongfully entered upon sad land and cut and removed therefrom one million feet of pine timber of the value of fifteen hundred dollars, for which judgment is prayed.

The answer was a general denial and an affirmative allegation that plaintiff has no title to the lands described in the petition.

The issues were submitted to the court who found for the defendant. Plaintiff appealed.

On the trial plaintiff dismissed the suit as to lot 1, of the northwest quarter.

Plaintiff's evidence shows that the defendant cut and removed from lot 2, of the northwest quarter, and lot 1, of the northeast quarter six hundred and eighty-nine thousand seven hundred feet of timber, worth six hundred and eighty-nine dollars and seventy cents; that no one was or had been in actual possession of the lands. To show title in himself, plaintiff introduced, first, a patent from the United States, dated August 1, 1860, granting the lands to Charles Faber. The patent was never recorded, Second, the duly certified plat book from the United States land office of the Ironton district, in which district the land is situated, showing that the lands were entered by Charles Faber. Third, a general warranty deed, dated August 15, 1860, from Charles Faber, conveying the lands to plaintiff. This deed has never been recorded in Wayne county.

Defendant claimed title to the lands, and to prove its title to lot 1 of the northeast quarter, introduced a sheriff's deed purporting to convey the interest of F. M. Seaward and Daniel Cunningham to J. N. Holladay, a deed from H. N. Holladay and wife to James F. Hatten, and a deed from Hatten and wife to defendant. To show title in lot 1, northwest quarter, in Seaward and Cunningham, at the date of the sheriff's deed, and title in lot 2, of the northwest quarter, defendant offered evidence that none of the original deeds (except such as were offered in evidence) were in possession of its officers or agents, and proved that the records of deeds in and for the county of Wayne were destroyed by fire in 1892, and then introduced E. P. Settle as a witness, who testified that prior to the destruction of the land records of Wayne county he made, in part, and had made abstracts of the deeds of record in the recorder's office of that county; that he had one Knouse in his employ for about a year at work upon his abstract books; that he furnished Knouse with printed slips to expedite the making of abstracts of deeds from the record; that these slips were first filled out and then transcribed onto the...