Keen v. Schnedler
| Decision Date | 06 December 1886 |
| Parties | Keen, Appellant, v. Schnedler et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Appeals.
Reversed.
Lackland & Wilson for appellant.
(1) Plaintiff's first instruction is qualified by the fourth. There is nothing misleading. It is, in the main, right. There is no reversible error, if any. State ex rel. v Coontz, 83 Mo. 323, 331-2; Russell v. State Insurance Co., 55 Mo. 594; Bridwell v. Swank, 84 Mo. 456, 467; Wade v. Railroad, 78 Mo. 362, 366; Gray v. Packet Company, 64 Mo. 50; Kimes v Railroad, 85 Mo. 611, 614; Hamilton v. Boggess, 63 Mo. 233, 243; Bradley v. West, 60 Mo. 33, 41; DeGraw v. Taylor, 37 Mo. 310; Knowlton v Smith, 36 Mo. 507, 514. (2) Plaintiff's sixth instruction is right. There was ample evidence to support it. Huckshorn v. Hartwig, 81 Mo. 648; St. Louis University v. McCune, 28 Mo. 481; Knowlton v. Smith, 36 Mo. 507, 514; Kincaid v. Dormey, 47 Mo. 337; Tamm v. Kellogg, 49 Mo. 122, 123; Thomas v. Babb, 45 Mo. 384; Hamilton v. West, 63 Mo. 93; Lemmon v. Hartsook, 80 Mo. 13; Smith v. Lindsey, 89 Mo. 76; 3 Wash. on Real Prop. 125. (3) Defendants asked for the same declaration of law themselves. Defendants' instructions, seven and fourteen, are the same as plaintiff's instruction six. They are, therefore, estopped from complaining. Crutchfield v. Railroad, 64 Mo. 255; Davis v. Brown, 67 Mo. 313; McGonigle v. Daugherty, 71 Mo. 259, 265-6; Mastin Bank v. Hammerslough, 72 Mo. 274; Smith v. Culligan, 74 Mo. 388; Bettes v. Magoon, 85 Mo. 580, 586. (4) To trace the title to a common source is sufficient. Defendants' instruction eight was properly refused. Miller v. Hardin, 64 Mo. 545, 546; Butcher v. Rogers, 60 Mo. 138. Possession is presumed to be in the owner of the title. Bradley v. West, 60 Mo. 33; Mylar v. Hughes, 60 Mo. 105. (5) Defendants' instruction ten was properly refused. (6) Defendants' instructions eleven and thirteen were properly refused. They are demurrers to the evidence. If there is any evidence at all tending to support plaintiff's cause, the case must go to the jury. Clotworthy v. Railroad, 80 Mo. 220; Wash v. Morse, 80 Mo. 568; Grewington v. Jenkins, 85 Mo. 57; Baum v. Fryrear, 85 Mo. 151; Groll v. Tower, 85 Mo. 249. (7) Defendants' instruction twelve was properly refused. An unrecorded deed is good against all the world, except a subsequent innocent purchaser, for value, without notice. Strickland's Heirs v. McCormick's Heirs, 14 Mo. 166, 169; Cape Girardeau Road Co. v. Renfro, 58 Mo. 265, 271-2; McCamant v. Patterson, 39 Mo. 100, 110; Gibson v. Chouteau, 39 Mo. 536, 558; Railroad v. Moore, 45 Mo. 443. The defendants had notice of this unrecorded deed by the recitals in their own deed from Watson to Hansell. Scott v. McCullock, 13 Mo. 15, 16; 1 Story's Eq., sec. 400; 1 Greenl. Evid., sec. 23; Brush v. Ware, 15 Peters [U.S.] 93. (8) It is well settled that remittiturs are allowed for the purpose of correcting judgments in which the finding has been for too large an amount. They may be entered in ejectment cases. Gibson v. Chouteau, 50 Mo. 86; Priest v. Deaver, 22 Mo.App. 284-5; Henry v. Bassett, 22 Mo.App. 673. They may be entered in the Supreme Court. Gibson v. Chouteau, 50 Mo. 86; Miller v. Hardin, 64 Mo. 545; Johnston v. Morrow, 60 Mo. 339; Cook v. Railroad, 63 Mo. 398, 403. The allowance of the remittitur in this case by the trial court was highly proper. (9) The record furnishes all the data, and contains all the facts necessary for the accurate adjustment of the remittitur and a just apportionment of the damages. Kimes v. Railroad, 85 Mo. 614; Wade v. Railroad, 78 Mo. 366; Fine v. St. Louis Public Schools, 39 Mo. 68. (10) The remittitur entered by the trial court defines a definite tract. But granting it to be otherwise, it furnishes no ground to the St. Louis court of appeals for reversing the case. That court had power to correct the judgment without remanding the case. So has this. It was not a reversible error, if true. Philips v. Evans, 64 Mo. 22; R. S., 1879, secs. 3570, 3582, 3583, 3375, 3776; Hunt v. Railroad, 89 Mo. 607; Cruchon v. Brown, 57 Mo. 38, 39; Lemmon v. Hartsook, 80 Mo. 14, 21; Fine v. St. Louis Public Schools, 39 Mo. 68. (11) There is nothing in the objection to the change of venue, and to the jurisdiction of the Warren circuit court. Plaintiff's application contained all that the law required. The statute does not require a plaintiff to state, in his application for a change of venue, the time when he obtained his information or knowledge of the causes for which he asks the change of venue, but it does require it of a defendant. R. S., 1879, secs. 3731, 3732, 3733. (12) But it is immaterial in this case, because the defendants appeared in the Warren county circuit court and defended without objection. Powers v. Browder, 13 Mo. 154, 156; State v. Knight, 61 Mo. 374; Feedler v. Schroeder, 59 Mo. 364, 366; Henderson v. Henderson, 55 Mo. 545; Taylor v. Railroad, 68 Mo. 397, 399; Meyer v. Broadwell, 83 Mo. 571. (13) Plaintiff's unrecorded deed from Watson to McClaren was properly admitted in evidence. Strickland's Heirs v. McCormick's Heirs, 14 Mo. 166, 169; Cape Girardeau Road, Co. v. Renfro, 58 Mo. 265, 271-2; McCammant v. Patterson, 39 Mo. 100, 110; Gibson v. Chouteau, 39 Mo. 536, 558; Railroad v. Moore, 45 Mo. 443. Defendants' deed from Watson to Hansell gave notice of the unrecorded deed by its recitals. Scott v. McCullock, 13 Mo. 15, 16; 1 Story's Eq., sec. 400; 2 Lead. Cas. in Eq. 139, 152, 168, 169; 1 Greenl. Evid. sec. 23; Brush v. Ware, 15 Peters [U.S.] 93. If the deed in question had been lost, plaintiff could have traced title through it by proving contents. If so, the deed itself is admissible. 1 Greenl. Evid., sec. 558, and notes; Donalson v. Williams, 50 Mo. 407, 408. The deed also constituted color of title, which alone would authorize its introduction in evidence. The plats offered by plaintiff were properly admitted in evidence, both, because they were official plats, and because they were in explanation of the testimony of the witness. Williamson v. Fisher, 50 Mo, 198, 200; Minke v. Skinner, 44 Mo. 92. (14) The costs of a re-trial would be several times greater than the value of the land in controversy. In such case this court would not order a re-trial unless it is very clear that great injustice has been done to the party complaining of the action of the trial court. Porter v. Harrison, 52 Mo. 524, 527.
Noble & Orrick, W. A. Alexander and T. F. McDearmon for respondents.
(1) The court below erred in granting the change of venue. R. S. 1879, sec. 3732, requires "any party" seeking a change of venue to file a petition, stating "when he obtained his information and knowledge" of the facts alleged, and the time must be sworn to, as much as any other part of the petition. The right to change of venue is statutory, and the statute must be strictly pursued. Lewin v. Dille, 17 Mo. 62; Norvell v. Porter, 62 Mo. 312; Corpenny v. Sedalia, 57 Mo. 88-92. The exception taken at the time of the order preserved the defendants' right, and a subsequent appearance did not waive this. Potter v. Adams, 24 Mo. 159; State v. Knight, 61 Mo. 374. (2) The court below erred in allowing a remittitur and giving judgment thereon. Gibson v. Chouteau, 7 Mo.App. 1, 3, 6; Pinner v. Edwards, 6 Rand. 675; Minor v. Bank, 1 Peters 74. (3) Neither the remittitur nor judgment was for any definite tract of land, calling as they do for a boundary line, when, confessedly now, there was no boundary line. (4) The court erred in the instructions given for plaintiff. The sixth instruction should not have been given, as there was no testimony in the case that the claim was not equal to the possession in fact. Cole v. Parker, 70 Mo. 379; Wallbrunn v. Ballen, 68 Mo. 167; Hamilton v. West, 63 Mo. 93; Majors v. Rice, 57 Mo. 389; Kincaid v. Doriney, 47 Mo. 337; S. C., 51 Mo. 554; Tamm v. Kellogg, 49 Mo. 122; Thomas v. Babb, 45 Mo. 384; St. L. U. v. McCune, 28 Mo. 507; Knowlton v. Smith, 36 Mo. 597. (5) The court erred in refusing those of the defendants' instructions it did. (a) It was error to refuse the eighth instruction, which asserted the plaintiff must show possession or fail, because this was just as true as to plaintiff, surely as to the lap, as that defendants could maintain themselves by possession only outside the lap. (b) The tenth instruction should have been given. It was this instruction, alone, that brought to the attention of the jury the lapping of the deeds, and that, as to the portion inside the lap, the plaintiff could recover only by showing a ten years adverse possession. Crispen v. Hannovan, 50 Mo. 536; Bradley v. West, 60 Mo. 33. But the defendants had the prior and better right, because the Watson deed of plaintiff was not recorded, while all of defendants' deeds were. Crispen v. Hannovan, supra. (c) The court erred in not granting the following instruction, asked by the defendants: "The court instructs the jury that, under the evidence, the plaintiff cannot recover, and the verdict must be for defendants." The plaintiff had asserted, in his petition, claim to one chain and twenty-three links east of what he asserted to be his western line. It was demonstrated that this was not the boundary line, and that, in fact, there was no boundary line, and the proof was conclusive that all the defendants had possession of, they had had not only for ten, but for fifteen years continuously next before the suit was commenced. An adverse possession of ten years will not only bar a recovery by the owner, but will extinguish his title and confer it upon the adverse possessor. Ridgeway v. Halliday, 59 Mo. 444; Barry v. Otto, 56 Mo. 177; Shepley v. Cowen, 52 Mo. 559; Bank v. Evans, 51 Mo. 335; Hamilton v. Boggess, 63 Mo. 233. The verdict was against the evidence.
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