Evans v. Kunze

• Decision Date: 28 May 1895
• Citation: 128 Mo. 670,31 S.W. 123
• Parties: EVANS et ux. v. KUNZE.
• Court: Missouri Supreme Court

31 S.W. 123

128 Mo. 670

EVANS et ux. v. KUNZE.

Supreme Court of Missouri, Division No. 1.

May 28, 1895.

LOCATION OF BOUNDARY — ESTOPPEL TO ATTACK — POSSESSION OF WIFE'S LAND — SUIT BY HUSBAND — EVIDENCE.

1. Where the division line between adjoining lots is in dispute, and the owner of one has the line located for the purpose of erecting a building on his lot, and notifies the other owner of such location, who tells the workmen to construct the partition on this line, and subsequently pays his proportion of the wall so erected, the latter will be estopped from asserting that this division line is not the true one.

2. The fact that a wife unnecessarily joins her husband in suing for possession of her land, and is included in a judgment against him, is not ground for reversal, since the judgment may be corrected by striking out her name.

3. Where, in an action by a husband and wife for the possession of property under the title of his wife, a judgment for defendant, based on the estoppel of plaintiff husband by his acts, to recover possession, will not be reversed on the ground that the wife cannot be deprived of her right to possession by the acts of her husband, where that issue was not raised by the pleadings, or advanced at the trial.

Appeal from circuit court, Cass county; W. W. Wood, Judge.

Action of ejectment by T. D. Evans and wife against L. O. Kunze. From a judgment for defendant, plaintiffs appeal. Affirmed.

J. S. Wooldridge, N. M. Givan, and H. Clay Daniel, for appellant. Wm. L. Jarrott and Burney & Burney, for respondent.

BRACE, C. J.

This is an action in ejectment instituted in the circuit court of Cass county by Thomas D. Evans and Henrietta Evans, plaintiffs, on the 3d day of October, 1891, against L. O. Kunze, for a narrow strip of ground in lot 4 in block 2 in the city of Harrisonville, covered by defendant's building. The case was tried by the court without a jury. Judgment for the defendant, and the plaintiffs appeal.

The petition is in common form; the answer, a general denial. Plea of the statute of limitations, and a plea of estoppel, as follows: "For another and further defense and answer herein, defendant says that on the ____ day of ____, A. D. 1885, he entered upon the construction of a brick building situate on the north 29 feet of the lot above described, and with the knowledge, consent, and acquiescence of plaintiff T. D. Evans, defendant contracted with plaintiff to pay, and did pay, one-half of the costs of constructing the said wall, with the agreement that it should stand and be used as a partition wall between said Evans and defendant; that with the knowledge, acquiescence, and consent of plaintiff Evans, this defendant constructed his building on said lot, covering 28 1/6 feet on the north side thereof, beginning on the east end, and extending back ____ feet thereon, and placed lasting and valuable improvements thereon. Wherefore, plaintiff Evans is estopped from claiming title to the land occupied by said building described above; and he prays judgment accordingly, and for costs." Issue joined by reply.

Block 2 in the city of Harrisonville was originally divided into three lots of equal size, fronting on the public square, and numbered, from the north, 4, 5, and 6. Joel D. Campbell was the owner of lot 4 in said block, and is the common source of title. On the 11th of January, 1845, he conveyed to Eli Dodson a part of said lot, contained within the following metes and bounds: "Beginning 18 feet north of the northeast corner of lot 5 in said block; running thence north 19½ feet; thence west 165 feet, to the alley; thence south 19½ feet; thence east, to the place of beginning." The plaintiff Henrietta M. Evans, by mesne conveyances, acquired Dodson's title to this part of said lot, and also to one foot more on the south side thereof, making her lot front 20½ feet. Afterwards, on the 7th of December, 1846, Campbell conveyed to John Cummins "all that part of lot number 4 in block number 2, north of Eli Dodson's line, which part of said lot is about 29 feet, fronting the public square, and extends west back to the alley." The defendant, by mesne conveyances, has acquired Cummins' title to this part of said lot. When these deeds were made, the width of the lot, in front, was evidently supposed to be 66 feet 6 inches. The Dodson deed, under which plaintiff claims, is the prior one, and fixes specifically the boundaries and quantity thereby conveyed. The quantity conveyed by the Cummins deed is estimated, the southern boundary of the parcel conveyed being fixed, however, by the north line of the Dodson grant, which, in front, was 37½ feet north of the northeast corner of lot 5. It appears from the evidence on this trial that the lot in fact only fronted 64 feet 5 inches, so that the Cummins deed only conveyed the 26 feet 11 inches lying between the north line of the Dodson grant and the north line of the lot, instead of 29 feet, as estimated, and the true line between these coterminous proprietors is a line drawn that distance from the north line of the lot and block. Mrs. Evans acquired title in 1871, and Kunze in 1867; and each had, ever since, until 1885, been in the occupancy of their respective subdivisions of said lot 4, claiming to own the same according to the lines called for in their several deeds. In 1885 Evans and Kunze, being desirous of improving their property, each removed the old structure on the front part of their respective lots, and erected substantial brick...