Flood v. Growney

Decision Date18 December 1894
Citation126 Mo. 262,28 S.W. 860
PartiesFLOOD v. GROWNEY.
CourtMissouri Supreme Court

Appeal from circuit court, Nodaway county; C. A. Anthony, Judge.

Ejectment by Margaret E. Flood against Patrick L. Growney. Judgment for plaintiff, and defendant appeals. Affirmed.

P. L. Growney, in pro. per. W. W. Ramsay, for respondent.

BURGESS, J.

Ejectment for 40 acres of land in Nodaway county. On a trial before a jury, there was a verdict and judgment for plaintiff for the possession of the land and $40 damages. The rents and profits were fixed by the jury at $5 per month. From the verdict and judgment the defendant appealed.

Plaintiff showed a regular chain of title from the United States government to Sarah Boyle, deceased, who died intestate in 1865. She was plaintiff's mother, under whom she claims title as the only surviving heir. The evidence showed that when plaintiff's mother died she left surviving her, as her only heirs, the plaintiff and a brother, whose name was John Boyle; that some 18 years before the trial the plaintiff and her brother lived at Easton, Pa., her brother residing with her, when he left home, went to Illinois, and from there to Colusa, Cal., whence he was last heard from, by letter, about 14 years before the trial, and, although efforts had been made to find him, they had been unavailing. The evidence also showed defendant in possession without title, so far as the evidence disclosed, of any kind. The plaintiff is the widow of James Flood, deceased.

Defendant's first contention is that the court committed error in giving the following instruction at the instance of plaintiff: "No. 2. If the jury believe from the evidence that Sarah Boyle died intestate, leaving as her only heirs the plaintiff and her brother; that her said brother has been absent and unheard of for a greater period than seven years, — then, in the absence of evidence to the contrary, the law would presume that said absent brother is dead, and in the event the jury believe there is no...

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