Goltermann v. Schiermeyer
| Decision Date | 04 December 1894 |
| Citation | 28 S.W. 616,125 Mo. 291 |
| Parties | Goltermann, Appellant, v. Schiermeyer |
| Court | Missouri Supreme Court |
Appeal from St. Charles Circuit Court.
Reversed and remanded.
H. C Lackland and C. W. Wilson for appellant.
(1) Defendant's instruction number 1 is illegal. First. It predicates the defendant's right to recover upon the proposition that the plaintiff and his predecessors made no claim to the land in dispute, and that defendant and his grantor claimed the land as their own. This branch of the instruction is grossly erroneous. Thomas v. Babb, 45 Mo. 387; Mayler v. Hughes, 60 Mo. 105. Second. It assumes that the defendant had been cutting rails and house logs on the eastern end of the land in dispute, when there was not a particle of evidence upon which to base such a declaration. Stone v. Hunt, 94 Mo. 480; Maffitt v. Conklin, 35 Mo. 457; Liggett v. Morgan, 98 Mo. 42; Harty v. Railroad, 95 Mo. 371; Waddingham v. Hughlett, 92 Mo. 535. Third. This instruction is confused and awkward in its phraseology, and was necessarily misleading to the jury. Belt v Goode, 31 Mo. 128; Donahoe v. Railroad, 83 Mo 560. Fourth. It predicates the defendant's right to a verdict upon simple proof of actual occupation of one part, and the exercise of acts of ownership over the other. Thomas v. Babb, 45 Mo. 386. (2) Defendant's instruction number 3, is grossly erroneous. First. It was wholly inapplicable to the case at bar, where the plaintiff, the real owner, was in the actual occupation of his farm, of which the disputed land was a part, and in which nothing short of actual occupation by inclosure or cultivation could oust his possession. Goltermann v. Schiermeyer, 111 Mo. 421; Bradley v. West, 60 Mo. 33; Griffith v. Schwenderman, 27 Mo. 412; Schultz v. Lindell, 30 Mo. 310; Crispen v. Hannavan, 50 Mo. 536; St. Louis v. Gorman, 29 Mo. 593; Thomas v. Babb, 45 Mo. 387; Land Co. v. Hays, 105 Mo. 151; Turner v. Hall, 60 Mo. 277. Second. It predicates the defendant's right to recover upon the proposition, that he and those under whom he claims, have exercised acts of exclusive dominion over the land, such as "paying taxes, cutting timber, etc." whereas there was no evidence to show that defendant had paid the taxes on the land in dispute. Kennedy v. Railroad, 36 Mo. 364; Maffit v. Conklin, 35 Mo. 457; Stone v. Hunt, 94 Mo. 480; Chouquette v. Barada, 28 Mo. 497; Merrit v. Givens, 34 Mo. 98; Turner v. Loler, 34 Mo. 461; Liggett v. Morgan, 98 Mo. 42, 43. Third. It declares the defendant entitled to a verdict upon proof of the exercise of mere acts of ownership, such as paying taxes, cutting timber, etc., without regard to whether these acts were continuous and without reference to when they commenced. By its terms it purports to cover the whole case, and leave nothing to be supplied. Thomas v. Babb, 45 Mo. 388; Norfleet v. Hutchins, 68 Mo. 599. (3) The court committed reversible error in refusing instructions asked by plaintiff. First. Plaintiff's instructions refused, numbers 1 and 2, should have been given. Pike v. Robertson, 79 Mo. 618; Cahn v. Reed, 18 Mo.App. 116; Thomas v. Babb, 45 Mo. 387; Leeper v. Baker, 68 Mo. 406; Chapman v. Templeton, 5 Mo. 463. Second. Plaintiff's instruction refused, number 3, should have been given. By the pleadings in the case, the question of mistaken possession was distinctly put in issue. This instruction correctly declares the law. Shad v. Sharp, 95 Mo. 574; Jacobs v. Mosley, 91 Mo. 457; Keen v. Schnedler, 92 Mo. 516; University v. McCune, 28 Mo. 482; Thomas v. Babb, 45 Mo. 387; Crawford v. Ahrnes, 103 Mo. 88; Knowlton v. Smith, 36 Mo. 507. Third. Plaintiff's refused instructions numbers 4 and 5 are unquestionably right. It was error to refuse them. Turner v. Hall, 60 Mo. 271; Bradley v. West, 60 Mo. 33; Bartlett v. Donoghue, 72 Mo. 563. Fourth. Plaintiff's instruction refused, number 7, is right. The court committer reversible error in refusing it. Devit v. Railroad, 50 Mo. 304; Goltermann v. Schiermeyer, 111 Mo. 421. Fifth. Plaintiff's refused instruction, number 8, was improperly refused. It is unmistakably the law. Bradley v. West, 60 Mo. 33; Turner v. Hall, 60 Mo. 271; Griffith v. Schwenderman, 27 Mo. 412; Schultz v. Lindell, 30 Mo. 310; Crispen v. Hannavan, 50 Mo. 536; St. Louis v. Gorman, 29 Mo. 593; Thomas v. Babb, 45 Mo. 385; Goltermann v. Schiermeyer, 111 Mo. 421. (4) There was no estoppel in pais made out in this case. The matter pleaded in the answer is insufficient in itself. But the evidence wholly fails to show, that defendant or his grantor were induced to take possession by any representations of the plaintiff or his ancestor. Hammerslough v. Cheatham, 84 Mo. 21; St. Louis v. Lumber Co., 98 Mo. 617; Noble v. Blount, 77 Mo. 242; Spurlock v. Sproule, 72 Mo. 509; Bales v. Perry, 51 Mo. 440.
Theodore Bruere and T. F. McDearmon for respondent.
(1) First. There is no error in the instructions given by the court at the request of the defendant. They declared the law in exact conformity to the decision of this court in this case and substantially in the language of its opinion. Goltermann v. Schiermeyer, 111 Mo. 404; Cole v. Parker, 70 Mo. 377; Handlan v. McManus, 100 Mo. 125; Battner v. Baker, 108 Mo. 311; Thomas v. Babb, 45 Mo. 384; Mississippi Co. v. Vowels, 101 Mo. 225; Leeper v. Baker, 68 Mo. 400; Draper v. Shoot, 25 Mo. 201. Second. The court committed no error in refusing instructions asked by the plaintiff. They were in direct conflict with the decision of this court in this case and with the well settled law. See cases above cited. Third. The court committed error in giving instructions asked by the plaintiff and of its own motion and refusing instructions asked by the defendant, but the error was favorable to the plaintiff and he ought not to complain of the result. See authorities cited above. Fourth. The defense of the statute of limitations was thoroughly and completely made by undisputed testimony, under the rulings of this court in this case and the court should have taken the case from the jury. Goltermann v. Schiermeyer, 111 Mo. 404, and cases cited above. (2) The defense of estoppel was also thoroughly sustained and the court should have, for this reason, taken the case from the jury, or at least given defendant's instructions numbers 7 and 8. Simmons v. Harstock, 80 Mo. 13; Majors' Heirs v. Rowse, 57 Mo. 384; Cooper v. Verra, 59 Cal. 282; Johnson v. Brown, 63 Cal. 391; Davis v. Lodge, 46 Vt. 655; Spaulding v. Warren, 25 Vt. 316; Peerson v. Mosher, 30 Barb. 81; Baldwin v. Brown, 16 N.Y. 359; Case v. Trapp, 49 Mich. 59.
OPINION
In Banc
The suit is ejectment originally to recover sixteen and ninety-five one hundreths acres of land in section 31, township 46, range 1 east, in St. Charles county. The controversy originally involved the location of the true line running east and west through the center of said section, plaintiff having title to the south part of the northwest quarter and the west half of the northeast quarter and defendant having title to the southwest quarter and the northwest quarter of the southeast quarter. The disputed land extended from a north and south line through the center of the east half of the section to the west side thereof, being one and six hundreths chains wide on the east and four and thirty-eight hundredths chains on the west end thereof.
Each party, at the commencement of the suit, was in actual possession of the lands to which he had undisputed title, using them as farms, but the strip in controversy was in the inclosure of defendant. Two surveys of the line east and west through the center of the section conflicted and the disputed land lay between them. Both purported to be according to the original United States survey. The most northerly line was made by county surveyor Krekel at an early day and was known as the Krekel line. Defendant was in possession to this line and plaintiff was in possession of the land north of it at the commencement of this suit.
On a former trial plaintiff recovered judgment in the circuit court and the defendant appealed. That appeal was heard and determined by this court and the opinion of the court is reported in 111 Mo. 404, 19 S.W. 484, 20 S.W. 161, to which reference is made for a more detailed statement of the facts.
This court held that the most southerly line was the true one, and that plaintiff and his grantors, under their patents from the United States, acquired the title to the disputed land. It also held that under the undisputed evidence defendant and his grantors had ever claimed the Krekel line as the true one. A majority of the court also held that defendant had acquired title to the west two thirds (in length) of the land by the undisputed adverse possession thereof for the requisite period. The judgment was accordingly reversed and the cause remanded for a new trial on the question of fact concerning adverse possession of the east end of the land which had not been inclosed by defendant for ten years next before the commencement of the suit.
On a retrial the evidence was substantially the same as it was shown to have been by the record of the first trial, the evidence bearing on adverse possession being more in detail. The judgment was for defendant and plaintiff appealed.
I. Before the trial defendant amended his answer, pleading that plaintiff by his acts and conduct was estopped to deny defendant's title to the Krekel line. On the question of estoppel defendant asked, and the court refused to give, the following instruction:
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Flynn v. Wacker
...... limitations. Ernsting v. Gleason, 137 Mo. 594;. Handlan v. McManus, 100 Mo. 124; Goltermann v. Schiermeyer, 111 Mo. 404; Battner v. Baker, 108. Mo. 311; Brummell v. Harris, 148 Mo. 430. (3) The. running of the statute was not interrupted ......