Heinricks v. Terrell
| Citation | 21 N.W. 171,65 Iowa 25 |
| Parties | HEINRICHS v. TERRELL |
| Decision Date | 24 October 1884 |
| Court | United States State Supreme Court of Iowa |
Appeal from Johnson Circuit Court.
THE petition states that the plaintiff is the owner of the following described real estate: "Twenty acres off the north side of twenty-five acres off the south side of lot No seven, (7,) of section No. thirty-three, (33,) township No eighty, (80,) north, of range No. six west," and that the defendant entered thereon, and "trod down the grass and dug holes in the ground," to the damage of the plaintiff.
The defendant denied the allegations in the petition, and pleaded that he owned the premises on which the alleged trespass was committed, and that he had been in the actual possession thereof, under color of right and claim of title, for more than twenty years prior to the alleged trespass. The defendant further pleaded that in 1860 one Crum owned the premises described in the petition, and that he and Crum agreed that a certain stone was one of the true corners of said premises, and that Crum relinquished all claim to the land lying east of a line extending south from said stone and that ever since said time the defendant has been in possession of the land east of said line under a claim of right and title. Trial by jury, verdict and judgment for the plaintiff. The defendant appeals.
REVERSED.
Milton Remley, for appellant.
Boal & Jackson and Robinson & Patterson, for appellee.
I.
The Iowa river runs through section thirty-three, and, as we understand, the section was sub-divided into lots by the government. For the purpose of determining certain questions in relation to the admission of evidence, it will be assumed that the plaintiff owns lot seven, and the defendant lot six. The latter abuts on the former on the east. The real controversy relates to the boundary line between these two tracts of land.
The plaintiff, however, under the issue, assumed the burden of proving title in himself. For this purpose he offered in evidence a deed from John Buck to William Crum, describing the following premises: "Twenty off the north end of lot No. 1, in section thirty-three, township 80, range 6, joining on the south end on five acres of land belonging to Jacob Mustcher." To the proposed evidence the defendant objected, on the ground that the land described in the deed was not the same as that described in the petition. The objection was overruled, and the deed admitted in evidence.
Lot one, in section thirty-three, as sub-divided by the government, lies north of the river, and lot seven on the south side thereof. But, as we understand, (at least it will be so assumed,) Jacob Mustcher, at the time the deed from Buck to Crum was executed, owned five acres of land in lot seven, which abutted on the land claimed to be owned by the plaintiff on the south "end" thereof. The plaintiff further claims that there was a lot, known as lot one, which constituted a part of lot seven. But we do not understand that a plat of any subdivision of lot seven was ever filed and recorded as provided by law. Jacob Mustcher did not own any land in lot one, as recognized and described by the government survey; and it will be observed that the land conveyed by Buck to Crum is described as "joining on the south end on five acres of land belonging to Jacob Mustcher," and this call in the deed to some extent identifies the land claimed by the plaintiff; but the other call, on the face of the deed, describes other and different land. It is not claimed that the deed is void on the ground of the inconsistent calls or descriptions of the premises conveyed, but merely that the deed fails to describe the land upon which it is alleged the trespass was committed.
We think the deed was admissible in evidence, because it constitutes a necessary link in the chain of the plaintiff's title; and, while the description of the premises is undoubtedly defective, yet we think it not improbable that the plaintiff, by competent and satisfactory evidence, may be able to show that the land described in the deed is the same identical land as that upon which it is alleged the trespass was committed. Whether this was done on the trial below, we do not determine.
II. The plaintiff further objected to the admission of the deed in evidence, on the ground that the plaintiff had failed to show title in Buck, under whom the plaintiff claims. The order in which evidence should be introduced is largely in the discretion of the court below, and therefore it could not ordinarily be said to constitute error, if material and necessary evidence is introduced at any time during the trial. But we have looked through the record, and we fail to find that the plaintiff introduced, at any time during the trial, any evidence tending to show title in Buck; and yet he recovered. It must be assumed, therefore, that such evidence was not regarded as being essential.
The plaintiff did not allege in his petition that he was in possession of the premises, but solely relied on the alleged fact that he was the owner of the land in controversy. To constitute him such owner, he must show that he or his grantors obtained title from the general government. This the plaintiff failed to do, and, therefore, he was not entitled to recover, unless he was not required to trace his title back to the general government, because the defendant pleaded in his answer that Crum, at one time, owned the premises, and the plaintiff now owns whatever title Crum had.
The plaintiff, therefore, having failed to show title in himself, was not entitled to recover.
It will be assumed, however, that he can, on another trial, show that Buck had title, and therefore it becomes necessary...
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