Harrison v. Cachelin

• Court: Missouri Supreme Court
• Writing for the Court: RICHARDSON
• Citation: Harrison v. Cachelin, 27 Mo. 26 (Mo. 1858)
• Decision Date: 31 March 1858
• Parties: HARRISON, Appellant, v. CACHELIN, et al., Repondents.

27 Mo. 26

HARRISON, Appellant,

v.CACHELIN, et al., Repondents.

Supreme Court of Missouri.

March Term, 1858.

1. Instructions should not be given unless supported by the evidence.

Appeal from St. Louis Land Court.

Casselberry for appellant, cited Harrison v. Cachelin, 23 Mo. 124; Reilly v. Chouquette, 18 Mo. 225; 10 Watts, 142; 4 Whart. 298; 25 Penn. 252.

Whittelsey, for respondent, cited Martin v. Whittington, 4 Mo. 518; Campbell v. Hood, 6 Mo. 211; 6 Mo. 250; 7 Mo. 220; Watts v. Douglas, 10 Mo. 676; 19 Mo. 307; State v. Anderson, 19 Mo. 246; Menkens v. Ovenhaus, 22 Mo. 70; Williams v. Dongan, 20 Mo. 186; 5 Metc. 173; 9 Mo. 477; 18 Mo. 220.

RICHARDSON, Judge, delivered the opinion of the court.

When this case was first before this court (23 Mo. 117) it was decided that the defendants had no title in law or equity, and on the last trial they did not attempt to set up any, but relied solely on the statute of limitations.

The court gave the following instruction at the request of the defendants: “If the jury believe from the evidence that the defendants and those under whom they claim have had open and visible possession of the premises in dispute under a claim of title adverse to the title of the city of Carondelet and of the plaintiff for the period of twenty years next before the commencement of this suit, they will find for the defendants.” If an instruction contains a correct proposition of law, it will not be exceptionable, if there is any evidence to warrant it, no matter how conflicting or how little it may be; but there must be some evidence; and where the whole case turns, as this did, on a single point, an instruction like the one given, without any proof to support it, is not simply obnoxious as a harmless abstraction, but is pregnant with mischief as tends to mislead the jury, in assuming facts that did not exist. I would be opposed to disturbing this judgment if there was the least evidence on which to base the instruction; but this is not a case of conflicting testimony, or of doubt, as to the side on which it preponderated, but a total absence of any proof to give color to the hypothesis on which the instruction was framed. Not a single witness on either side, or all of them together, proved an uninterrupted possession for twenty years, and the defendants not only failed to make out their defense, but affirmatively disproved it, and established by every one of the witnesses they introduced, who undertook to connect the several possessions, that there was a gap of six or eight years after 1844, during which time there was neither house nor fence nor occupation of any kind, nor anything else to indicate the appearance of a hostile claim or possession; and if the plaintiff during that time had been diligently seeking a law suit, he could not have found any person against whom he could have maintained an action of ejectment for this lot. A party should not suffer the penalty of losing his right by not suing, where there is nobody to sue, and in this case...