Love v. Love

• Decision Date: 31 May 1913
• Citation: 157 S.W. 590
• Parties: LOVE v. LOVE.
• Court: Missouri Supreme Court

157 S.W. 590

LOVE v. LOVE.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. EJECTMENT (§ 95) — EVIDENCE — TITLE OF DEFENDANT.

In an action of ejectment evidence held not sufficient to show title to the land in the defendant.

2. EJECTMENT (§ 9) — RIGHT OF ACTION — PRIOR POSSESSION OF PLAINTIFF.

Where there is no evidence of title in either plaintiff or defendant, the prior possession of the plaintiff is sufficient to enable him to maintain ejectment against one who has ousted him.

3. APPEAL AND ERROR (§ 856) — GROUND NOT PRESENTED IN LOWER COURT.

Where the plaintiff in an action of ejectment was entitled to judgment on the admitted facts because of his prior possession, a judgment for him will be sustained, even though the issue of prior possession was not raised in the lower court.

Appeal from Louisiana Court of Common Pleas; D. H. Eby, Judge.

Action by Arch Love against William Love. Judgment for the plaintiff, and defendant appeals. Affirmed.

Pearson & Pearson, of Louisiana, Mo., for appellant. Robert A. May and David A. Ball, both of Louisiana, Mo., for respondent.

BROWN, C.

Ejectment instituted September 10, 1909, to recover a tract of land in Pike county, described in the petition as follows: "Beginning at the northeast corner of the west one-half of the southwest quarter of section 30, township 55 north, range 2 west; thence east 10 chains; thence north 14.55 chains to a stake on the south bank of Salt river; thence with the meandering of Salt river in a northwesterly direction to the northeast corner of Wm. Love's 32-acre tract (being the point where the line running north and south, dividing equally the west half of said section 30, intersects the south bank of Salt river); thence south 25.25 chains to place of beginning, containing 19.90 acres."

A plat of the section in which the land is situated was introduced in evidence. We reproduce it here, as it will assist materially an understanding of the description, as well as much of the evidence relating to it.

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

The ouster was laid as of May 30, 1907. The answer is a general denial.

At the trial the plaintiff introduced an administrator's deed, dated August 25, 1871, executed by Masten H. Arthur, administrator of Joseph Love, deceased, to James Love, in which the land conveyed is described as follows: "Twenty acres; it being and lying in the northeast corner of eighty and 14/100 acres, the fractional part of the northwest quarter of section thirty on the south side of Salt river in township fifty-five, range two west, and being the same land on which the deceased lived at the time of his death, and lying in Pike county, Missouri."

This deed was in ordinary form for the conveyance of lands sold for the payment of the debts of a decedent. Its admission in evidence was objected to on the sole grounds that the description which it contains is so indefinite that it passed no title, and that it does not refer to the property described in the petition. These objections having been overruled, the defendant duly excepted. The plaintiff next introduced a general warranty deed from James Love to himself, dated September 14, 1905, in which the land conveyed is described as follows: "Twenty acres; it being and lying in the northeast corner of eighty and 14/100 acres, the fractional part of the northwest quarter of section thirty (30) on the south side of Salt river, in township 55, range 2 west. Also the east half of the southwest fractional quarter of section thirty (30), township 55, range 2 west, containing seventy-five and 41/100 acres. Also the northeast quarter of the northwest quarter of section thirty-one (31), same township and range above mentioned, containing thirty-eight acres, more or less. Also the southeast quarter of section number thirty (30) in the same township and range, containing thirty-three and 58/100 acres, more or less."

The defendant objected to the introduction of this deed, on the ground that the description, so far as it relates to the property in controversy, is too vague, indefinite, and uncertain, and is not the same land described in the petition, and saved his exception to the ruling by which it was admitted. It reserved a life estate to the grantor. Plaintiff next introduced a general warranty deed, dated September 14, 1905, from James Love to William Love, which also reserved a life estate in the grantor. The land conveyed was described in this deed as follows: "All the west half of the southwest quarter of section thirty (30), township fifty-five, range two west. Also the fractional part of the northwest quarter of section thirty (30), township fifty-five, range two west, on south side of Salt river, except twenty acres being and lying in the northeast corner of eighty and 14/100 acres, the fractional part of said northwest quarter of section thirty (30) on the south side of Salt river, township and range aforesaid, which twenty acres was conveyed to grantor herein by Masten H. Arthur, administrator of the estate of Joseph Love, by deed dated August 25, 1871, recorded in Book 40, at pages 590, 591, and 592, of the Deed Records of Pike county, Missouri."

James Love was the father of both plaintiff and defendant. These deeds were made in the distribution of his estate to his children.

A comparison of them with the plat and other evidence explanatory of it indicates that the portion of the N. W. ¼ of section 30 lying south of Salt river has, since the execution of the administrator's deed in 1871, dwindled from 80.14 acres to about 61 acres. This is explained by erosion of the river bank, which is counterbalanced to some extent by accretion to the eastern portion of the fraction. The area of this fraction which lies in the W. ½ of the quarter section has decreased from about 60 acres to 32.08 acres.

The evidence tends to show that for many years that part of the west tier of 40's of section 30 lying south of the river was generally known as the Eastin Early tract, the E. ½ of the S. W. ¼ of the section generally known as the Bradley tract, and that portion of the S. E. ¼ of the N. W. ¼ of the section lying south of Salt river was generally known as the Joe Love tract, and that Joseph Love resided on it at the time of his death. It also tends to show that at some time after the execution of the deeds from James Love to his sons he went with them and Mr. Beauchamp, a surveyor, to the ground and ran and marked the line running along the east side of the Eastin Early tract north to the river, and that it was accepted, for the time being at least, as the line dividing the lands conveyed by the deeds to plaintiff and defendant, respectively. The father died March 26, 1906. It is admitted by defendant in his testimony that after some discussion the two sons proceeded to take possession of the land up to this line. The plaintiff rented the corn land, which consisted of about 10 or 12 acres of the south end of the tract in controversy, to one Penrod, who put a crop of corn on it, and the defendant put in a crop of corn on the land lying immediately west of it. In October, after the crops had matured, the defendant proceeded to gather one-third of the Penrod corn, which was the amount of the rent reserved by the plaintiff. For this a recovery was afterwards had against him in an action for trespass. He also extended a fence along the south and east sides of the land in controversy, consisting...