Franklin v. Haynes
| Decision Date | 25 May 1897 |
| Citation | 40 S.W. 945,139 Mo. 311 |
| Parties | Franklin v. Haynes et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Maries Circuit Court. -- Hon. D. W. Shackleford, Judge.
Reversed and remanded.
W. S Pope for appellants.
(1) The contention is as to the line between the north fractional half (left bank of the Gasconade river), section 30, township 41, range 8, and the south half of the section. The verdict does not decide the contention, and judgment thereon follows the verdict so far as description is concerned. Robertson v. Drane, 100 Mo. 273, is decisive of this case. (2) The answer of defendant, Ray James, is a complete defense to plaintiff's suit. It was not denied. The defendant's instruction, in the nature of a demurrer to the testimony should have been given. (3) The instruction given by the court at the instance of plaintiff is wrong. The jury were misled thereby. The instruction in effect authorized a finding for plaintiff when such was not warranted by either the pleadings or evidence. The instruction ignored the statute of limitations pleaded by defendant, and all other defenses pleaded and not denied.
Barr & Corse for respondent.
This is an action in ejectment in the usual form, instituted October 1895, in the circuit court of Maries county, for the recovery of the possession of a tract of land in said county described in the petition as the "north fractional half (left bank of the Gasconade river), of section 30, township 41, range 8." It was tried upon the petition and answer of the defendant Ray James, to which there was no reply. The substance of the answer (after denying the allegations of the petition except as in the answer admitted) is that the said defendant has been informed and believes that the land which the plaintiff claims to own and seeks to recover is a piece of land some fifty acres in extent in section 30, township 41, range 8, on the south side of the Gasconade river, and on the inside of a field owned by the said defendant and of which he and his ancestors and their grantors have been in the open, notorious, continuous, adverse, and peaceable possession for more than forty years, claiming title thereto under patents from the United States conveying to them the south half of section 30, township 41, range 8, and which was occupied by his tenants at the time this suit was commenced, one of whom was his codefendant, William Haynes. It appears from the undisputed evidence on the trial, that on the first day of June, 1882, a patent from the United States issued conveying to George Franklin the land described in the petition as "the north fractional half (left bank of the Gasconade river) of section 30, township 41, range 8," and that the plaintiff had acquired that title to four sixths of that land, and that the defendant Ray James had acquired the government title to the south half of section 30, township 41, range 8.
As to these titles of the parties respectively, there was really no dispute. The serious and vital question in the case was the location of the dividing line between the north fractional half, and the south half of said section 30, both lying south of the Gasconade river, by which would be determined the primary and main question, whether any, and if so what part of the defendant's closed field of about one hundred acres, referred to in his answer, was within...
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