Jacobs v. Moseley
| Decision Date | 21 March 1887 |
| Parties | Jacobs, Appellant, v. Moseley et al |
| Court | Missouri Supreme Court |
Appeal from Boone Circuit Court. -- Hon. G. H. Burckhartt, Judge.
Reversed.
A. M Hough for appellant.
(1) The court erred in refusing instruction number seven, asked by plaintiff. There was no evidence upon which the court could find for the defendants on the ground of estoppel. The evidence in the case does not show a single element of estoppel. Acton v. Dooley, 74 Mo. 63; Donaldson v. Hibner, 55 Mo. 492; Bigelow on Estop. 525, 526, 521 524; Kincaid v. Dormey, 51 Mo. 552; Bales v Perry, 51 Mo. 453; Ormsby v. Ihmsen, 34 Pa. St. 472; Hill v. Epley, 31 Pa. St. 334; 3 Wash. Real Prop. 75, 78; Burk v. Adams, 80 Mo. 504; Spring v. Hewson, 52 Cal. 442; Chapman v. Crooks, 41 Mich. 595; Dougal v. Fryer, 3 Mo. 40; Liverpool Wharf v. Prescott, 7 Allen, 494. (2) Instruction number seven, given for defendants, should have been refused. There was no evidence upon which to base it. There was no evidence, whatever, that, prior to 1879, or at any time, a boundary line had been "established by mutual agreement made between the plaintiff and the person or persons under whom defendants claim title to their said lands." The instruction makes a case for defendants not made in their answer, nor is the case made in the evidence. It is error to give an instruction where there is no evidence to authorize it. Parker v. Marquis, 64 Mo. 38; Weiland v. Wayland, 64 Mo. 168; Kreech v. Railroad, 64 Mo. 172; Clark v. Railroad, 64 Mo. 440; Lillis v. Railroad, 64 Mo. 464; Brown v. Insurance Co., 86 Mo. 51. (3) The seventh instruction given for defendants should not have been given, because plaintiff did not own the land when the mutual agreement is supposed, by instruction numbered seven for defendants, to have been made "between the plaintiff and the person or persons under whom defendants claim title to their said lands." Estoppel in pais operates only on existing rights. It cannot be invoked against an after-acquired title. Donaldson v. Hibner, 55 Mo. 492; Barker v. Circle, 60 Mo. 258; Bigelow on Estop. 525. (4) Defendants' seventh instruction is erroneous, for the reason that it states that "plaintiff is bound by said line, and is not permitted to dispute its correctness in the absence of fraud." Plaintiff is not attempting to estop defendants, therefore, he is not required to show any fraud on their part. But as defendants are seeking to estop plaintiff, by their testimony, it is necessary that they should show that to permit plaintiff to dispute the supposed agreed line would operate a fraud on defendants. Plaintiff can only be estopped on the ground that he has knowingly deceived or misled defendants, or the person or persons under whom they claim title, to their injury, and caused them to change or alter their position, and that it would be a fraud to allow plaintiff to deny those facts. Bales v. Perry, 51 Mo. 453; Ormsby v. Ihmsen, 34 Pa. St. 472; Hill v. Epley, 31 Pa. St. 334; 3 Wash. Real Prop. 75, 78. (5) The court erred in giving instructions one and seven, on the part of the defendants. Instructions should be framed solely with reference to the issues. It is error to instruct on issues not raised by the pleadings. There was no plea of estoppel. Moffatt v. Conklin, 35 Mo. 453; Camp v. Heelan, 43 Mo. 591; Bank v. Murdock, 62 Mo. 70; Hassett v. Rust, 64 Mo. 325; Noble v. Blount, 77 Mo. 242; Benson v. Railroad, 78 Mo. 504. (6) The court erred in sustaining defendants' motion, made at the trial, "allowing defendants to avail themselves of the plea of estoppel, when they had withdrawn and stricken said plea of defence out of their said answer." Facts relied upon as an estoppel in pais must be specially pleaded. Miller v. Anderson, 19 Mo.App. 71; Weise v. Moore, 22 Mo.App. 530; Bray v. Marshall, 75 Mo. 325; Noble v. Blount, 77 Mo. 235; Hammerslough v. Cheatham, 84 Mo. 13.
Smith, Silver & Brown and C. B. Sebastian for respondents.
(1) The instructions given assert the correct doctrine of the law of estoppel in pais as applicable to the case. Lemmon v. Hartsook, 80 Mo. 13. (2) Where evidence is admitted without objection, and the issue goes to the jury thereon, the appellate court will not reverse the judgment to try the case over on an amended pleading. Wise v. Railroad, 85 Mo. 178; Stack v. Lyon, 9 Pick. 65; Leabo v. Goode, 67 Mo. 135; Noble v. Blount, 77 Mo. 235. (3) Facts constituting an estoppel in pais are admissible in ejectment under the general denial. Raynor v. Tieners, 46 Barb. 518; Phillips v. Blair, 38 Ia. 649; Cuque v. Sears, 17 Hun, 124; Tuttle v. Railroad, 76 Va. 291. (4) The division fence was placed there in 1871 by Dinwiddie, under whom defendants claim title by purchase, with the consent and approbation of plaintiff, and in the continuance of which he had long acquiesced. After the time of the agreement and consent of plaintiff to the location of the hedge by Dinwiddie, the plaintiff was in possession of his adjoining lands by gifts from his father. A deed was afterwards made to plaintiff under the promise made when he was placed in possession, so that, at the time of the giving of his consent to the location of the hedge, and his subsequent acquiescence in its continuance, he was owner of the land.
This was an action of ejectment for 6.19 acres of land. The contest arose from a dispute as to the dividing line between the southeast and the southwest quarters of section 31, township 49, range 11, in Boone county. Plaintiff acquired the southeast quarter by a deed from his father, dated in 1876. He testified that he had lived on the land since 1863; that his father then gave it to him, and that the deed was made in pursuance of that agreement. A Mr. Dinwiddie owned the other quarter, and, in 1877, sold the same to Wm. Moseley, who died in 1882, and the defendants are his widow and heirs. Plaintiff, in 1867, while in possession of his farm, under the agreement with his father, built a rail fence along what he assumed to be the line. Subsequently, Dinwiddie planted a hedge in lieu of the north half of the fence, and that and the south half of the rail fence continued to define the possession of the respective parties down to the commencement of this suit.
Dinwiddie testified as follows: "In 1871, I saw W. H. Jacobs, and told him I wanted to set out a hedge, and he said all right; that I could move my fence over so as to set the hedge on the line, and have room to cultivate it; I moved my fence and put out the hedge, about one foot west of the line, on my land; there is a large rock on the corner of my land; it was there when I first knew the land, and is still there; it was always known as the corner-stone; there was another cornerstone at the south end of the fence, near Mr. Moseley's gate-post; the fence was run on the line between these two corner-stones, and when I planted my hedge, to be sure that I put it on my line, I put it about a foot west of the corner-stones; I grew my hedge into a fence; Mr. Jacobs saw me cultivating and growing and never made any objections, or told me it was not on the line."
The plaintiff testified that, in 1880, he and William Moseley, the deceased, had the line surveyed by Mr. Wright; that this survey placed the hedge and rail fence on him; that the corners placed by Wright were removed by some one, and he had the line re-surveyed by Wright and three other persons, all county surveyors of different counties. These surveyors all concur in saying that, by their survey, defendants are in possession of 6.19 acres belonging to plaintiff's quarter section.
Jacob H. Moseley, a son of the deceased, says, that before the Wright survey, and in 1878, Mr. Quinn surveyed some lands for him and a neighbor, on the south of the land in question; that Quinn fixed the south corner here in question one foot west of a rock, which had stood as a corner mark as far back as he could remember, and that this corner, fixed by Quinn, was in a line of the continuations of the hedge; that this threw the rail fence about five feet on the plaintiff. Surveys made by Shields, as far back as 1836, were put in evidence. They showed that he identified these rocks, spoken of by Dinwiddie and Moseley, as half-section government monuments.
The case was tried by the court, without a jury, and was made to turn upon two instructions. That for the plaintiff is, in substance, if Dinwiddie and plaintiff agreed upon a line, in 1871, as the true line, and the former was induced to plant his hedge near such agreed line, still, if plaintiff had no title to the land occupied by him, he is not estopped from claiming the land in dispute. The other declaration of law given for defendants, is, that if, prior to 1879, a boundary line was established by the mutual agreement between the plaintiff and persons under whom the defendants claim, and that the parties to the agreement, or those claiming under them, respectively, held possession up to the...
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