Harbison v. School-District No. 1

• Decision Date: 07 June 1886
• Citation: 89 Mo. 184,1 S.W. 30
• Parties: HARBISON and others v. SCHOOL-DISTRICT No. 1, ETC., SCOTT CO.
• Court: Missouri Supreme Court

1 S.W. 30

89 Mo. 184

HARBISON and others v. SCHOOL-DISTRICT No. 1, ETC., SCOTT CO.

Supreme Court of Missouri.

June 7, 1886.

1. TRIAL — BY THE COURT — INSTRUCTIONS WHEN NO JURY TO BE CHARGED.

In proceedings before the court other than in equity, although there is no jury to be charged, a party has the right to demand that the principles of law involved in the case shall be given by the court as distinctly as in instructions to the jury.

2. STATUTE OF LIMITATIONS — COLOR OF TITLE — OCCUPATION OF PART OF LOT — POSSESSION.

When, in an action of ejectment, defendant claims through a lost deed whose contents are proved on the trial, such deed, if found to be executed and delivered, gave color of title; and the actual possession of part of the lot, by maintaining a building thereon, defendant claiming meantime the whole under the deed, was equal to actual possession of the entire lot without color of title to any part of it.

Appeal from Scott county.

Marshall Arnold, for respondents, John N. Harbison and others. Mr. Hunter and Smith & Krauthoff, for appellant, School-district No. 1, etc., Scott county.

HENRY, J.

Plaintiffs sued to recover possession of lot No. 57, in the town of Benton, Scott county. The answer was a general denial, and a plea of the statute of limitations. On a trial of the cause by the court, without a jury, plaintiff obtained a judgment for one-half of the lot, and defendant has appealed. Plaintiffs' title is based upon a deed executed by Joseph Hunter, described in said deed "as commissioner of said town of Benton;" but there was no other proof that he was then (eighth January, 1840) commissioner of said town. The town of Benton was the county-seat of the county; and the deed recites "that the late commissioner for the location of the county-seat of Scott county, and for the sale of lots in the town of Benton, had previously sold a number of lots in the town of Benton at public sale, to different individuals, and that the county court of said county had subsequently, by its order, confirmed said sales, and ordered the present commissioner to execute deeds to purchasers of said lots, or their legal representatives, upon payment of the money bid at said sale;" and proceeds to convey the interest of the county in the lots so sold to the heirs of Thomas Houts, deceased. No particular lot is named. Other testimony was introduced by plaintiffs, who are the heirs of said Houts, which it is not deemed necessary to set out.

Defendant's testimony proved the order for selecting a school-house site in the town of Benton, made in conformity with the statute, January 2, 1872; the selection of lot 57; the record of the...