Houx v. Batteen

• Decision Date: 31 October 1878
• Citation: 68 Mo. 84
• Parties: HOUX v. BATTEEN, Appellant.
• Court: Missouri Supreme Court

68 Mo. 84

HOUX

v.BATTEEN, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Lafayette Circuit Court--HON. WM. T. WOOD, Judge.H. C. Wallace for appellant.

Geo. S. Rathbun for respondent.

HENRY, J.

The plaintiff, respondent, in July, 1875, instituted a suit in ejectment against the defendant, in the circuit court of Lafayette county, to recover a strip of land in the north part of the northwest quarter of section 6, town. 49, range 18, in said county, “being a strip across the north side, 470 links wide on the west side, and 235 links on the east side, containing about 15 acres.” The answer denied plaintiff's title, and also that defendant, on the 1st day of March, 1871, or at any other time, took possession as alleged in the petition. The cause was tried by the court without the intervention of a jury, and there was a judgment in favor of plaintiff, from which defendant has duly prosecuted an appeal.

The evidence on the part of plaintiff was an entry of the northwest quarter of section 6, town. 49, range 28, by Henry Trigler on the 4th day of February, 1825. 2nd. The record of a deed from Henry Trigler to Peter Purvant, dated 4th day of January, 1828, conveying “85 acres, it being the one-half of the northwest quarter of section 6, in township 49, of range 28.” The deed was signed “Henry Trigle.” To this deed was attached the certificate of W. Y. C. Ewing, a justice of the peace, “that Henry Trigler, whose name is subscribed to the within deed, is personally known to me as having executed the same before me.” Defendant objected to the admission of the deed as evidence, because the description of the land was uncertain and the acknowledgment defective, but the court overruled the objection.

Plaintiff then offered the record of a deed from said Henry Trigler to Jessie Hitchcock, dated the 6th day of March, 1829, conveying to the said Hitchcock “all the grantor's right and title to, and interest in, the following described tract or parcel of land lying in the county of Lafayette, it being the northwest quarter and west half of section 6, township 49, range 28, containing by estimation 85 acres, more or less.” This deed was signed “Henry Trigtt,” and to it was appended a certificate of W. Y. C. Ewing, that on the 26th day of March, 1829, Henry Trigler, who was personally known to him to be the person whose name was subscribed to the foregoing instrument of writing as having executed the same, acknowledged the same to be his act and deed, &c. To the introduction of this deed defendant objected, because it was signed by Henry Trigtt and acknowledged by Henry Trigler. The court overruled the objection.

Plaintiff then read as evidence a deed from Jessie Hitchcock and wife to Peter Purvant, dated 12th day of February, 1830, conveying to the grantee “the west half of the northwest quarter of section 6, township 49, range 28, contraining 85 acres by estimation, more or less.” Then followed the record of a deed from said Purvant to Joshua H. Sterne, dated 29th day of January, 1853, conveying to said Sterne the northwest qurter of section 6, township 49, range 28. Next, the record of a deed from said Sterne to Joseph Hassell, dated 7th day of April, 1864, conveying to Hassell the northwest quarter of section 6, township 49, range 28, except four acres off of the southwest corner of said quarter section. Then followed a deed from said Hassell to William Houx, the plaintiff, dated 9th day of February, 1866, conveying the same land conveyed to said Hassell by said Sterne.

The controversy grew out of a misunderstanding as to the location of the northwest corner of said quarter section, plaintiff insisting that the point which defendant, who owned the land north, claimed as the corner was some distance south of the true corner. There was such a conflict of evidence on that issue that we have no disposition to interfere with the finding of the court, and will not disturb the judgment unless the court, in the progress of the trial, committed errors materially prejudicing the defendant, and shall proceed to consider the errors assigned.

1. DEED: signature in wrong name: certificate of acknowledgment.

The first complaint is of the admission of the deed from Henry Trigler to Peter Purvant. The deed was signed by Henry Trigle, and the acknowledgment was so defective that it did not cure the defect in the deed, which should therefore have been excluded. But this error of the court did not prejudice the defendant if the deed from Trigler to Hitchcock was sufficient to convey a title to the land. That deed was signed “Henry Trigtt.” In the body of the deed it purported to be the deed of Henry Trigler, and the justice of the peace who took the acknowledgment, certified, in due form of law, that Henry Trigler acknowledged it to be his act and deed, and this we think sufficient.

2. STATUTE OF LIMITATION.

But if this were not so, Purvant, under the deed from Hitchcock to him, immediately took possession of the west half of the said northwest quarter. The deed was made in 1830, and the plaintiff and those under whom he claims had been in the exclusive, peaceable, uninterrupted possession of said half quarter, under color of title at the commencement of the suit for a period of 45 years, and such possession is sufficient to sustain an action of ejectment. Merchants Bank v. Evans, 51 Mo. 335.

Defendant objected to the introduction of the report of the surveyor who was ordered by the court to survey the land in dispute. Without considering in detail the objections to the report, it is sufficient to say that the surveyor was introduced as a witness, and testified to all the facts contained in the report. Nor did the court err in excluding the testimony of the witness Adams as to a survey made by one Tidball in 1869. Tidball was not the county surveyor, and his survey was not made with the consent of the claimant of the land. Wag. Stat. § 11, p. 1308.

The court declared the law for plaintiff as follows; 1st. That if in this case the plaintiff and defendant have claimed, and still claim, to the line which they suppose to be the true line dividing their respective premises, their possession held under mistake or ignorance of the true line, and without intending to claim beyond the true line when discovered, will not and does not work a disseizin in favor of either party.

2nd. If the court find from the testimony that the plaintiff in this case is the owner of the north half of the northwest quarter of section 6, township 49, range 28, as set...