January v. Harrison

• Decision Date: 22 December 1917
• Docket Number: No. 18880.,18880.
• Citation: 199 S.W. 935
• Parties: JANUARY v. HARRISON.
• Court: Missouri Supreme Court

199 S.W. 935

JANUARY v. HARRISON.

No. 18880.

Supreme Court of Missouri, Division No. 1.

December 22, 1917.

Rehearing Denied December 31, 1917.

Appeal from Circuit Court, Reynolds County; E. M. Dearing, Judge.

Action by R. I. January against J. R. Harrison. From a judgment favoring defendant, plaintiff appeals. Affirmed.

On March 17, 1914, plaintiff filed in the circuit court of Reynolds county, Mo., his petition, in two counts, against said defendant. The first is an action of ejectment to recover a small strip of land in the west half of the southeast quarter of section 20, township 32, range 1 east, located in the county aforesaid, as shown by the plat, upon pages 34, 35, of abstract and designated as "A" thereon. Said plat is herewith made a part of this statement. The date of ouster is laid at February 17, 1914, and the monthly rents and profits of said land placed at $25. The second count is an action to quiet title to the strip of land designated as "B" on the above plat, in which plaintiff claims title thereto, by adverse possession, under the 10-year statute of limitations, etc.

Defendant, in his answer, admits that the blue strip shown on the east side of "A," as indicated on above plat, belongs to plaintiff.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

He alleges that he fenced it through mistake, and asked that he be permitted to remove his fence, or that he be paid for same the sum of $7. Further answering the said first count, defendant admits that he is in possession of the above strip designated as "A" upon said plat, and denies the other allegations contained in said first count. For answer to second count of petition, defendant denies that plaintiff is the owner of the strip of land designated as "B" on the above plat. He avers that he is the owner, entitled to the possession of same, and claims title thereto. He denies every other allegation in said second count, prays the court to ascertain and determine the title to said strip B and asks for general relief.

The evidence, as far as necessary, will be considered in the opinion. The case was tried by the court without a jury. Plaintiff asked a single instruction, which was given by the court, and will be referred to hereafter. No instructions were asked or given on behalf of defendant.

On November 27, 1914, the court found that plaintiff is the owner of the blue strip lying east of A as shown upon said plat, and is entitled to the possession thereof; that he has been damaged $1; that the monthly value of the rents and profits thereof is 25 cents. The court further found that defendant is the owner and entitled to the possession of the remaining land described in the first count of petition and designated as "A" upon the plat aforesaid. The court further found that defendant is the owner in fee simple of the land described in the second count of petition and designated as "B" upon said plat. The court, in its decree, authorized defendant to remove his fence along the southern, eastern, and northern boundaries of the blue strip lying east of A as designated upon said plat. The court further adjudged that all costs which accrued before the filing of the answer should be taxed against defendant and all other costs taxed against plaintiff.

Judgment was entered in due form upon the findings aforesaid. Plaintiff filed a motion for a new trial, which was overruled, and the cause duly appealed by him to this court.

J. H. Keith and Brewster & Brewster, all of Ironton, for appellant. J. B. Daniel, of Piedmont, for respondent.

RAILEY, C. (after stating the facts as above).

I. Respondent, in his brief, asserts that:

"There is nothing before this court for review except the record; appellant's abstract of the record proper failing to show any record entry of the filing of a motion for a new trial."

This contention is not sustained by the abstract of record on file. On pages 11 and 12 of the latter, it is recited that on November 28, 1914, it being the fifth day of the regular November term, 1914, and within three days after the rendition of the judgment aforesaid, plaintiff filed his motion for a new trial. The abstract, on page 12a further recites that on the above date said motion was overruled, etc. The motion for a new trial is set out properly in the bill of exceptions. The above contention of respondent is without merit and is overruled.

II. It is insisted by appellant that the trial court committed error in finding that respondent owned the strips of land designated as "A" and "B" upon the plat aforesaid, for the reason that respondent introduced no deed or other evidence of title to same. Appellant's petition, among other things, contains the following:

"Plaintiff further states that the western boundary line of said real estate is a conditional line agreed upon by the defendant and one Elvis Harrison, his father, prior to the time that plaintiff purchased the adjoining farm from the said Elvis Harrison, and that, since the said purchase of said adjoining farm by plaintiff from the said Elvis Harrison as aforesaid, the said boundary line has been regarded and acknowledged by plaintiff and defendant as the division line between the adjoining farms of plaintiff and defendant. Plaintiff...