Foulke v. McIntosh, 6785.

• Decision Date: 01 November 1948
• Docket Number: No. 6785.,6785.
• Citation: 214 S.W.2d 735
• Parties: FOULKE v. McINTOSH.
• Court: Missouri Court of Appeals

214 S.W.2d 735

FOULKE v. McINTOSH.

No. 6785.

Springfield Court of Appeals. Missouri.

November 1, 1948.

Appeal from Circuit Court, McDonald County; Emory E. Smith, Judge.

"Not to be published in State Reports".

Action in replevin by Emerson Foulke against J. A. McIntosh to replevy barbed wire and fence posts. Judgment was for plaintiff in justice court, and defendant appealed to the circuit court. From a judgment of the circuit court for the plaintiff, the defendant appeals.

Reversed and remanded for further proceedings.

J. T. Pinnell, of Pineville, and Robert Stemmons, of Mt. Vernon, for appellant.

Ruark & Ruark, of Neosho, for respondent.

VANDEVENTER, Presiding Judge.

This is an action in replevin. The plaintiff, respondent here, brought this action in the justice court in Newton County, Missouri, whereby he sought to replevin from J. A. McIntosh, defendant (appellant here), five miles of 4-barb galvanized wire and 400 hedge fence posts, all of the value of $200.00. Judgment was procured by the plaintiff in the justice court. An appeal was taken to the circuit court and the case was tried in McDonald County, where it went on a change of venue. There, plaintiff won again, the jury finding that he was entitled to possession of the property but gave him no damages. From the judgment of the trial court, defendant appealed.

At the close of all the evidence, plaintiff filed a motion for a directed verdict, which the court overruled and submitted the case to the jury.

Plaintiff contended that the barbed wire and fence posts in question were removed, or at least part of it, from land belonging to plaintiff, had been stored on the premises of the defendant, had been seized by the sheriff on a writ of replevin and at the time of the trial was in the possession of the plaintiff. The plaintiff's theory was and is that when he bought certain described land, he obtained title to the fence because it was situated on the land he purchased. The defendant's theory, is that the fence was not situated on the land purchased and now owned by the plaintiff, that therefore plaintiff had no title to it and should not be permitted to recover.

In replevin, a plaintiff must recover, if at all, upon the strength of his own title and not upon the weakness of his adversaries. Quick v. Van Hoose, Mo.App., 205 S.W.2d 875; Pearl v. Interstate Securities Co., Mo.App., 198 S.W.2d 867 and Mo.Sup., 206 S.W.2d 975; Hannibal Inv. Co. v. Schmidt, Mo.App., 113 S.W.2d 1048; Johnson v. Brown Bros. Iron & Metal Co., 208 Mo.App. 189, 231 S.W. 1011; Leete v. State Bank of St. Louis, 141 Mo. 584, 42 S.W. 927.

The plaintiff introduced in evidence a copy of a judgment of the circuit court of Newton County, in which county the land was situated, dated March 29, 1943, in which judgment the title to the land and the "fencing on said land" was vested in the plaintiff and another. This judgment was rendered in a case where Emerson Foulke (respondent here) and L. J. Haines were plaintiffs, the treasurer of Newton County was defendant and J. A. McIntosh (appellant here) and Carrie McIntosh were interpleaders. In this judgment, a tax deed dated November 3, 1941, to the land was held void and J. A. McIntosh and his wife were ordered to execute and deliver to Emerson Foulke and L. J. Haines, the plaintiffs, a quitclaim deed to the premises. The court from the "surplus proceeds of the said tax sale now in the hands of the defendant" allowed the attorney for the interpleaders (McIntosh and wife) a fee of $300.00 and to W. O. Hanks, another attorney of theirs, $100.00 and the remainder of the sum, to-wit, $1,450.00 was to be paid to the interpleaders and they were to have a lien on the premises for that amount until it was paid. This judgment was never appealed from and became final.

There was also introduced in evidence a quitclaim deed, dated April 6, 1943, by J. A. McIntosh and his wife to L. J. Haines and Emerson Foulke for the premises in question, which deed conveyed the premises "with all rights, immunities, privileges and appurtenances thereto belonging." This deed had been duly recorded in the office of the recorder of Newton County, as had also been the judgment above referred to. The plaintiff then introduced in evidence a quitclaim deed from L. J. Haines and his wife to Emerson Foulke (the plaintiff) and his wife to the property in question. This deed was executed on the 22d day of September, 1943, and was also recorded. There is no question but that at the time of this litigation, plaintiff and his wife owned the land.

The oral testimony of the plaintiff indicated that in June, 1945, J. A. McIntosh employed three men to take down a wire fence, to take up the posts upon which the wire had been partially strung and these were hauled to the premises of Mr. McIntosh and stored in his barn and barn lot. The testimony of one witness was:

"Q. Now, what kind — were there any buildings or improvements on that place?

A. No, not that I ever seen.

"Q. Any except the fence? A. Not that I ever seen; nothing but the fence."

This fence went "around" the land.

The evidence showed that in the construction of the fence, posts were used when it was necessary but that the wire was also nailed to growing trees when they were available, that the fence did not run in a straight line, but "wabbled" in some places from tree to tree. A railroad ran in a southerly direction on the west side of the tract of land, entering the land to such an extent that a few acres were on the west side of the railroad. Two of the forties composing the 120 acres ran east and west and the third forty joined the west forty on the south, making it "L" shaped. The most of the posts were between the land and the railroad right of way on the west side.

It could be inferred from the evidence that at one time there was another fence around the 120 acres but when the new fence was built, it was placed outside of the old fence line. Whether the old fence was on the lines is not shown. One witness for plaintiff testified that the new fence that was taken down (the fence in question here) was "on other people's land." No improvements, except the fence, were on the land.

The sheriff testified that he went to the farm of Mr. McIntosh and seized 17 rolls of barbed wire and between 300 and 400 hedge posts and delivered them to the plaintiff.

The plaintiff testified that pursuant to the judgment of the circuit court, he borrowed $1450.00 and had his attorney pay the same to the circuit clerk and introduced in evidence a receipt to that effect. That before he made the settlement, he examined the land and that there were no improvements on it but the fence in question. "It was fenced around the outside only — all the way round the boundaries of it." He testified that part of the fence in question was on the east side of the railroad right of way. He then testified:

"A. I am pretty sure that the fence east of the railroad and along the west line was on my land. So far as that goes, I don't know because I am not a surveyor; and it had not been surveyed at that time.

"Q. Well, then you don't know, do you?

A. No, I don't know."

He testified that he never discovered that the fence was gone until September, 1945, more than two years after he purchased the land. The fence and posts were taken away sometime in 1945, prior to September. The plaintiff became familiar with this land in 1934, he purchased the land and the fence but he was not able to testify "as a surveyor," as to the location of the lines, or that any of the fence was on the land he purchased. "All I know is I went and looked at the land when we made the deal and the fence was out there."

On behalf of the defendant, Myron A. McIntosh, son of the respondent, testified that he recalled his father buying the 120 acres of land at a tax sale, that the land had been surveyed twice, that he saw the fence in question erected, that it was...