Heins v. Baxter

• Decision Date: 26 June 1899
• Citation: 52 S.W. 236,151 Mo. 147
• Parties: HEINS v. BAXTER.
• Court: Missouri Supreme Court

52 S.W. 236

151 Mo. 147

HEINS v. BAXTER.

Supreme Court of Missouri, Division No. 2.

June 26, 1899.

APPEAL — REVIEW.

Where no exceptions to any proposition of law are saved, and there is ample evidence to justify the court's finding, the judgment will be affirmed.

Appeal from circuit court, Greene county; James T. Neville, Judge.

Ejectment by Henry Heins against Anna F. Baxter. From a judgment for defendant, plaintiff appeals. Affirmed.

Charles J. Wright, for appellant. Sebree & Farrington, for respondent.

GANTT, C. J.

Ejectment for seven feet of land in the city of Springfield. The answer is a general denial, 10 years' adverse possession in defendant and those under whom she claims, and a special plea averring a mistake in the description of the lots out of which the litigation grows. Replication contained a general denial of new matter. The facts are that in 1883 George Robinson was the owner of about three acres of land fronting on Elm street, in Springfield. He divided this land into different lots, each having 75 feet front, beginning at the west end of the tract on Elm street. He put up fences dividing the lots. The first one, on the west end, he sold to John Griffith in 1883; the second, to plaintiff, Heins, in 1885; and the third, adjoining Heins' lot, he occupied himself until 1887, when he conveyed it to Kirk Baxter, Sr., the husband of the defendant. The plaintiff bought his lot after the other two were improved, and the fences built; that is, fences enclosed it on three sides. No doubt can exist, after reading the whole testimony, that all parties thought the fences were on the true lines, or that it was Robinson's intention to convey to plaintiff only 75 feet front, and that, according to the fences and the actual possession of plaintiff, he has had 75 feet continuously since he obtained his deed, and that, if he should recover, he will get nearly 7 feet more land than he bought. Regarding the fences as the true line, Mr. Baxter built a driveway on his side of the fence, and plaintiff built a similar one just on the other side, on his premises. No claim was ever made by plaintiff until a survey disclosed an error in the starting point. Plaintiff's claim is that they each claimed to the fence on the idea that it was the true line, and not intending to claim anything beyond the true line; whereas defendant and her son testified that she claimed to the fence without reference to the true line. The court, on the 5th day of December,...