Ekey v. Inge

• Decision Date: 31 October 1885
• Citation: 87 Mo. 493
• Parties: EKEY, Appellant, v. INGE et al.
• Court: Missouri Supreme Court

87 Mo. 493

EKEY, Appellant,

v.INGE et al.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Franklin Circuit Court.--A. MCELHINNEY, ESQ., Special Judge.

REVERSED.

Crews & Booth for appellant.

(1) Appellant, by reason of the deeds and transfers of possession, is in privity of estate with his grantors in said deeds, and is entitled to the benefit of their possession of said land. It was not necessary, under the circumstances, that the deeds should have in terms purported to convey any part of the northwest quarter in order to pass the interest of the grantors in the land here in controversy. 3 Washburn on Real Prop. (4 Ed.) 384. The land being known between the parties by the description contained in their deeds, and its boundaries marked by the fence, said deeds as between the parties were in law legal conveyances of the land in controversy. Mansfield v. Pollock, 74 Mo. 185; Long v. Higginbotham, 56 Mo. 245; Crispen v. Hannovan, 50 Mo. 536. (2) The possession of William Osborne, which began as early as 1820, ripened into a complete title in him, under the then twenty years statute, in the year 1840, seventeen years before C. B. Inge disputed that the western line of the enclosure of the said Osborne was on the true line between said quarter sections. Cole v. Parker, 70 Mo. 372; 3 Wash. on Real Prop. (4 Ed.) 142. (3) The former judgment in ejectment is no bar to this action. Kimmel v. Benna, 70 Mo. 52.

A. A. Underwood and Smith & Krauthoff for respondents.

(1) There is nothing for this court to review. There is nothing stated in the motion for a new trial to warrant a reversal for error. The court will not disturb the finding below, nor reverse the judgment, simply because it is alleged in the motion, that on the evidence the finding and judgment are erroneous, without stating in what particular. The admission of facts in this case, and their effect as evidence, shows that the facts relied upon by appellant for recovery are controverted by the admission of other facts relied upon by respondents. Easley v. Elliott, 43 Mo. 289; Weilandy v. Lemuel, 47 Mo. 322; Waddell v. Williams, 50 Mo. 217. (2) Under the admissions in this case the former judgment should be held conclusive. The gist of the various decisions is, that when the issues and evidence are the same, in all particulars, in both actions the former adjudication operates as an estoppel and concludes the rights of the parties. Especially is this the case when the common law form of ejectment is abolished and the action is commenced by the parties in their own names. Freeman on Judgments, pp. 264-9, secs. 293-5, 299, 301-2; Stevens v. Hughes, 31 Pa. St. 381; Sturdy v. Jackaway, 4 Wall. 174; Miles v. Caldwell, 2 Wall. 35; Marshall v. Shafter, 32 Cal. 176; Sherman v. Dilley, 3 Nev. 21; 3 Wallace, 245; Cagger v. Lansing, 64 N. Y. 417; 21 Minn. 515; Mahoney v. Middleton, 41 Cal. 41; Long v. Neville, 29 Cal. 131; Currier v. Esty, 116 Mass. 577; Sedg. & Wait on Title to Land, secs. 43, 44, and 512 to 525 inclusive. (3) If the former judgment, under the admissions in this case, does not create an estoppel it may be made evidence in this action, and is sufficient to warrant a finding either upon the grounds of evidence or authority. Kimmel v. Benna, 70 Mo. 52; 12 Peters, 410, and authorities cited on second proposition. Chouteau v. Gibson, 76 Mo. 38; Caldwell v. Smith, 77 Mo. 471.

SHERWOOD, J.

Action of ejectment for a strip of ground in Franklin county, lying in the northwest quarter of section six, township forty-two, range one, east. This strip, together with a portion of the northeast quarter of that section, had been enclosed by William Osborne, the owner of the northeast quarter, as far back as 1820, and had been by him, and those claiming under him, continually possessed until some time in 1877, when defendants in the present action prevailed against the plaintiff, who claims under Wm. Osborne, and recovered possession of said strip in an action of ejectment. Through some mischance the appeal taken in that case was never heard in this court.

Under the agreed statement of facts the plaintiff was clearly entitled to recover, if the recovery by defendants in 1877 of the premises in controversy be left out of consideration, for it is very plain that whatever may be thought of the effect of Wm. Osborne's possession of the strip of land in controversy, from 1820 down to 1857, it is beyond dispute that from the latter period down to the time of his death, in 1869, his...