Finck Realty Co. v. Lefler, 40140.

• Decision Date: 12 January 1948
• Docket Number: No. 40140.,40140.
• Citation: 208 S.W.2d 213
• Parties: FINCK REALTY CO. v. LEFLER et al.
• Court: Missouri Supreme Court

208 S.W.2d 213

FINCK REALTY CO. v. LEFLER et al.

No. 40140.

Supreme Court of Missouri, Division No. 2.

January 12, 1948.

Motion for Rehearing or to Transfer to Court en Banc Denied February 9, 1948.

Appeal from Circuit Court, Franklin County; Ransom A. Breuer, Judge.

Action in ejectment and to quiet title by the Finck Realty Company, a corporation, against Edward Lefler and Emma Lefler. From a judgment for defendants, the plaintiff appeals.

Judgment affirmed.

Dunbar & Curby and Norman C. Parker, all of St. Louis, for appellant.

Frank W. Jenny, of Union, and M. C. Matthes, of Hillsboro, for respondents.

WESTHUES, Commissioner.

This is an action in ejectment and also to quiet title to a narrow strip of land in Franklin County, Missouri. The trial court ruled that the defendants owned the land in fee simple and entered a decree accordingly. Plaintiff appealed.

The dispute arose over a division line between plaintiff's land and that of the defendants. Plaintiff, in 1945, purchased a tract of land which included a fractional part of the southwest quarter of the southeast quarter of Section 9, and the northwest quarter of the northeast quarter of Section 16, Township 41 North, Range 2 East in Franklin County, Missouri. Defendants owned the adjoining land on the east. Plaintiff had his tract surveyed and this survey, as made by a Deputy County Surveyor, established the boundary line between plaintiff's and defendants' property as being east of the division fence. This line was about 65 feet east of the fence at the north end of plaintiff's land and about 38 feet east thereof at the southern boundary line of defendants' land, which was the Little Meramec river. The length of the strip was about 1600 feet. Plaintiff relied upon the record title, while defendants claimed the land by adverse possession. Charles P. Finck, testified he was President of the Finck Realty Company and that the company, in August, 1945, purchased the land in question from Dr. R. B. Denny. He further testified that after the land was surveyed the defendant, Lefler, notified him to remove markers which had been placed east of the fence on the line as fixed by the survey. This suit followed. B. E. Hammer testified that in making the survey and establishing the boundary line he used the description as contained in plaintiff's deed. The defendants offered evidence by a number of witnesses that the fence they relied upon as the boundary line had been where it was when the survey was made for more than fifty years. Predecessors in title of both plaintiff and defendants had had no controversy over the boundary line. Each had used the land both for pasture and cultivation. Trees standing along the fence gave mute evidence supporting the evidence of defendants' witnesses. Barbed wire used in making the fence was embedded in trees some 6 to 12 inches deep. The defendant, Edward Lefler, testified that he rented the land he now owns about the year 1914, and purchased it in 1919. He testified that his predecessors in title informed him the fence was the boundary line and that he bought the land with that understanding. Plaintiff contended that the defendants claimed only to the true line and not to the fence, unless the fence was the true line. We do not so understand his evidence. We quote the following to illustrate:

"Q. How long have you known the location of that fence, Mr. Lefler? A. Well, ever since 1901 when I worked for McDaniel.

"Q. Was the fence in 1901 when you worked for Mr. McDaniel in the same location as it is now? A. Yes sir.

"Q. Do you know whether or not Mr. McDaniel farmed up to that fence? A. Yes sir.

* * * * * *

"Q. Have you at all times claimed to own the land up to this fence, Mr. Lefler? A. Yes sir.

"Q. At all times? A. Well, that is the way I bought it, they told me that was the line."

On cross-examination he testified as follows:

"Q. Mr. Lefler, you say you claim the title to this land up to the fence that we have been talking about? A. Yes sir.

"Q. By what right do you claim that title? A. Because I bought to the fence.

"Q. Because you bought to the fence? A. Yes sir; that is the way I bought it.

H. G. McDaniel testified as follows:

"Q. When did you buy it? (meaning the Lefler land) A. Well, it was in 1901, the dry year.

"Q. Did you live on it that year. A. Yes sir.

"Q. Did you farm it? A. Yes sir.

* * * * * *

"Q. Who owned the land — who owned the land across that fence at that time? A. Judge Denny.

"Q. Did he ever during the time that you owned the land come over and make any claim on the east side of that fence? A. He never did, never did.

"Q. Did you claim to own that land up to the fence? A. Yes sir; and I farmed it up to the fence.

"Q. And you say the fence now is where it was in 1901? A. Absolutely, right where it was."

R. B. Denny, from whom plaintiff purchased the land, was called as a witness and testified that his father and his father's heirs had owned the land about 61 years. He further testified as follows:

"Q. Doctor, did you know where this fence is in question down there? A. Yes sir.

"Q. Between the farm you sold Mr. Finck and Mr. Lefler's land, where his land is located, do you know that? A. Well, I know about. I know where it used to run.

"Q. Do you know how long it has been at that location? A. Well, I haven't gone over that down there, I owned this and had charge of the renting of it for a number of years, but the fences I couldn't say, I don't know whether it has been changed or not.

"Q. During the time you have owned it, did you ever go over to Mr. Lefler and claim any land on the other side of the fence? A. No, sir, I never had any occasion to."

Defendants urged that the survey, as made by the Deputy Surveyor, lacked probative force because it was not made in accordance with the statute and was not commenced at a government corner, citing Pioneer Cooperage Company v. Bland, 228 Mo.App. 994, 75 S.W.2d 431 loc.cit. 435, and Cordell v. Sanders, 331 Mo. 84, 52 S.W.2d 834 loc.cit 839. This question was before Division One of this court in the recent case of Landers et al. v. Thompson et al., 205 S.W.2d 544.

In the case before us we need not discuss the question as to the admissibility of the survey. For the sake of argument let us assume that the survey should be given credence. Even so, the defendants must prevail because the evidence established title by adverse possession beyond any question. In the case above mentioned, Landers v. Thompson, supra, this court, speaking of adverse possession, quoted with approval the following from State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174, loc. cit. 176 (5-8): "`The principle, as stated in all of our prior decisions, may be reduced to this: If the possessor occupies the land in question intending to occupy that particular piece as his own, his occupancy is...