Heynbrock v. Hormann

• Decision Date: 03 March 1914
• Citation: 164 S.W. 547,256 Mo. 21
• Parties: MARY HEYNBROCK et al., Appellants, v. WILLIAM HORMANN
• Court: Missouri Supreme Court

164 S.W. 547

256 Mo. 21

MARY HEYNBROCK et al., Appellants, v. WILLIAM HORMANN

Supreme Court of Missouri, First Division

March 3, 1914

Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.

Affirmed.

Alexander Graves and Horace F. Blackwell for appellants.

(1) It is conceded by the first stipulation set forth in the "Statement" that William Heynbrock, Sr., was the owner of the title of the land described in said stipulation. The undisputed evidence of County Surveyor Walker, quoted in the statment, established that the strip of land involved in this suit is part of the land described in said stipulation. The will of said Heynbrock, Sr., cited in the statement vested the title of the whole farm for life in his wife, the plaintiff. The defense was the Statute of Limitations. Plaintiff had a prima-facie case. It was reversible error to grant in favor of defendant the peremptory declaration of law set forth in the statement. Whitaker v. Whitaker, 157 Mo. 354. (2) The trial court erred in admitting the hearsay evidence of George E. Avery and other witnesses concerning the declarations of George W. Avery as to the hedge being the boundary line between him and Heynbrock, Sr (a) Not a single one of these declarations was made while pointing out the hedge as such boundary line; or in disparagement of the Avery claim. (b) Not a single one of these declarations was made in the presence of testator Heynbrock, or his widow, the plaintiff, or made under oath. (c) These declarations, if made, were by a party directly interested in enlarging his own private boundary, and not by a disinterested party to establish a boundary line of public interest, nor were they traditionary; hence, they constitute rank hearsay. Railroad v. View, 156 Mo. 618; 1 Green. Evi. (15 Ed.) section 145; Hunnicut v. Peyton, 102 U.S. 363; Elliott v. Pearl, 10 Pet. 181; Ware v. Brookhouse, 7 Gray, 454; Long v. Colton, 116 Mass. 415. (3) It will be remembered defendant testified that when he bought the adjacent land on the east side the cultivation did not extend to the hedge but to the public road which was on the east of the hedge. Also grant of thirty foot public road by Louis Cook, defendant Hormann grantor.

Chiles & Chiles and Aull & Aull for respondent.

(1) Declarations by parties in possession of real estate under claim of ownership, made while in such possession, are admissible to show the character of possession and claim under the Statute of Limitations. Bank v. Barber, 198 Mo. 470; Swope v. Ward, 185 Mo. 325; Whitaker v. Whitaker, 175 Mo. 1; Turner v. Belden, 9 Mo. 792; Mylar v. Hughes, 60 Mo. 105; Railroad v. View, 156 Mo. 618; Barrett v. Donnelly, 38 Mo. 494; Martin v. Bonsack, 61 Mo. 559; Crawford v. Ahrnes, 103 Mo. 88; Mississippi County v. Vowels, 101 Mo. 225; Davis v. Broswell, 185 Mo. 576; Dunlap v. Griffity, 146 Mo. 283; Harper v. Moore, 114 Mo. 325; Railroad v. Clark, 68 Mo. 374; Burgert v. Borchert, 59 Mo. 87; Thomas v. Wheeler, 47 Mo. 363; State to use v. Schneider, 35 Mo. 533; 1 Gr. Ev. (15 Ed.), sec. 109; Wigmore, Evidence, secs. 1777 and 1778. Appellant objects to the evidence showing statements of George W. Avery to various witnesses while he was the owner of, and in possession of the premises, made while on said premises, and offered in evidence to show the character of his possession and the adverse claim under the Statute of Limitations. The evidence was clearly admissible for the above purposes as frequently decided by this court. None of the objections made in appellants brief are tenable but appellant is not in position to press such objections here. The objection made in the trial court is: "The conversation was not made there with or in the presence of William Heynbrock or any of the plaintiffs." "No such objections were lodged below and hence may not be considered here." Bragg v. Co., 192 Mo. 342; O'Neill v. Kansas City, 178 Mo. 100; St. Louis v. Railroad, 248 Mo. 10. (2) Ten years open, notorious, continuous, adverse possession, under claim of ownership, with intention to claim title to the land, is sufficient. It is not necessary or essential, in order that the Statute of Limitations should begin to run, that actual notice of the claim should be brought home to the title owner. Swope v. Ward, 185 Mo. 316; Williamson v. Eilers, 114 Mo. 245; Scruggs v. Scruggs, 43 Mo. 142; Miller v. Rosenberger, 144 Mo. 300; Darsh v. Crane, 109 Mo. 323. This is not a case where the possession was, at first, permissive in character, but one where the possession, in its inception, was adverse. Swope v. Ward, 185 Mo. 316; Lumber Co. v. Jewell, 200 Mo. 707; Williamson v. Brown, 195 Mo. 333. (3) One who holds land by open, continuous, notorious, adverse possession, for ten years, obtains an indefeasible fee simple title thereto as effectually as through title acquired by deed. Myers v. Schucmann, 182 Mo. 159; Scannell v. County, 161 Mo. 606; Kirton v. Bull, 168 Mo. 622; Franklin v. Cunningham, 187 Mo. 196; Ekey v. Inge, 87 Mo. 493; Bank v. Evans, 51 Mo. 335; Ridgeway v. Holliday, 59 Mo. 444; Bledsoe v. Simms, 53 Mo. 305; Sherwood v. Baker, 105 Mo. 472; Long v. County, 107 Mo. 298; Barry v. Otto, 56 Mo. 177; Dalton v. Bank, 54 Mo. 105; Hamilton v. Boggess, 63 Mo. 233; Allan v. Mansfield, 82 Mo. 688; Wall v. Shindler, 47 Mo. 282; Nelson v. Broadhack, 44 Mo. 596; Warfield v. Lindell, 38 Mo. 561; Blair v. Smith, 16 Mo. 273. (4) The trial of this case was before the court, without a jury, and at the close of all the evidence and argument, and, after a consideration of all the evidence, the court, in declaration one, for defendant, declared that "under the law and the evidence in this case, the plaintiff cannot recover, and the finding of the court should be for the defendant." "This declaration announced no more than the finding of the court, and cannot be said, either to have misled the court, or to have withdrawn from its consideration any testimony adduced on the trial. Stone v. Spencer, 77 Mo. 361; Kansas City v. Askew, 105 Mo.App. 87. Neither of the above cases have ever been criticised or overruled. The citation of appellant, with excerpts from the case tried before a jury, do not militate against the above. The appellant requested the court to grant a similar declaration, on the part of appellant, as follows: "The court declares the law to be that upon the pleadings and the evidence the finding must be for the plaintiff." Which the court refused. Whether we consider this standing on the same theory, or, inviting the same action of the court, it clearly shows that the appellant at the time occupied that position. (5) Under the record it is clearly shown that the court made its finding on the law and the evidence, duly considered all the evidence, heard argument of counsel thereon, and rendered its finding accordingly. This, regardless of the above declaration. But if it could be considered error, appellant at the time occupied the same position. Crum v. Crum, 231 Mo. 626; Sepetowski v. Co., 102 Mo.App. 121; Berthold v. Co., 165 Mo. 311; Christian v. Ins. Co., 143 Mo. 467; Rourke v. Railroad, 221 Mo. 62; Smart v. Kansas City, 208 Mo. 204; Soldaniels v. Railroad, 23 Mo.App. 516; Nagel v. Co., 104 Mo.App. 444; Gordon v. Pary, 219 Mo. 611; Thrope v. Railroad, 89 Mo. 650; Holmes v. Braidwood, 82 Mo. 610; Phelps v. Salisbury, 161 Mo. 14; State ex rel. v. Co., 94 Mo.App. 196; Cady v. Coates, 101 Mo.App. 152; Dodge v. Knapp, 112 Mo.App. 528. The finding of the court is as conclusive, on appeal, as the verdict of a jury. Magee v. Burch, 108 Mo. 341; Morton v. Steele, 125 Mo. 190; Fohey v. Gordon, 133 Mo. 426; De Lassus v. Faherty, 164 Mo. 361. (6) If a division line be taken and considered by the adjoining proprietors as the true line, and the party possessing the land up to said line claims it as his own, it makes no difference how the line is made, whether by mistake or otherwise; the possession is adverse. Stumpe v. Kopp, 201 Mo. 412; Schwartzer v. Gebhardt, 157 Mo. 99; Kincaid v. Dormey, 51 Mo. 552; Majors v. Rice, 57 Mo. 384; West v. Railroad, 59 Mo. 510; Hamilton v. West, 63 Mo. 93; Dee v. Nachbar, 207 Mo. 680; McCabe v. Bruere, 153 Mo. 1; Porter v. Gaines, 151 Mo. 560. (7) An agreement, as to the boundary, may be shown by facts and circumstances. And, in determining the facts, long acquiescence and recognition of the line by the parties and their privies become very important factors. Schwartzer v. Gebhardt, 157 Mo. 99; Ernistine v. Gleason, 137 Mo. 594; Stumpe v. Kopp, 201 Mo. 412.

OPINION

GRAVES, J.

Action in ejectment for a strip of land in Lafayette county, Missouri, thus described in the petition:

"Beginning at the northeast corner of the west half of the northwest quarter of the northwest quarter of section twenty-three, township forty-nine, range twenty-four, running thence south along the line between the west half and the east half of said northwest quarter of the northwest quarter of said section to the southeast corner of said west half of said northwest quarter of said northwest quarter of said section, thence west twenty-four and 41-100 (24.41) feet thence north to a point twenty-nine feet west of the said beginning point thence east twenty-nine feet to the beginning."

The petition is the ordinary one for actions in ejectment, laying ouster as of January 2, 1905, and asking damages in the sum of $ 300, and alleging rents and profits at ten dollars per month. Originally the plaintiffs were Mary Heynbrock and her six children, but before judgment the court permitted the children to retire from the suit, and the wage of war was then between Mary Heynbrock, the very aged widow of William Heynbrock, deceased, and the defendant Hormann.

The answer upon which trial was had is short, and had best speak for itself. The material portions...