Mangold v. Phillips

• Decision Date: 31 March 1916
• Citation: 186 S.W. 988
• Parties: MANGOLD v. PHILLIPS et al.
• Court: Missouri Supreme Court

186 S.W. 988

MANGOLD v. PHILLIPS et al.

Supreme Court of Missouri, Division No. 2.

March 31, 1916.

Rehearing Denied May 31, 1916.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Suit by John Mangold against John A. Phillips and others. From a judgment for defendants, plaintiff appeals. Judgment affirmed.

This is an ejectment suit, in which defendant had judgment, and plaintiff has appealed. The land described in the petition is lot 1 in block 6 in Mangold's subdivision of part of the S. W. ¼ of the S. W. ¼ and part of the S. E. ¼ of the S. W. ¼ of section 10, township 24, range 6 E., Butler county, Mo. It is conceded that the plaintiff owns that lot, and that defendant Pauline Phillips owns the land adjoining it on the north. We will call the latter the Phillips tract. The boundary between the two tracts is the north boundary of the S. W. ¼ of the S. W. ¼ of said section. The only dispute is as to the boundary line between the tracts. A fence was built about the year 1888 on or near the line between the two tracts by one Ferguson, who then owned the Phillips tract. Ferguson conveyed that tract to John B. Marshall in 1890. Marshall was in possession of it from that time until about the year 1910, when he conveyed it to Pauline Phillips, who has been in possession since her purchase. When Phillips acquired the property, the fence had been in a dilapidated condition for two or three years. Soon after Phillips bought it, the fence was torn down by some one, but was at once replaced by her with a new fence on the same line.

John B. Marshall testified for defendants that there was no dispute about the boundary line while he owned it, that when he bought the land from Ferguson the latter told him that they had just made the Vinegar Hill survey, and that it was correct, and that it was the line. He further testified as follows:

"Q. You say you don't know yet where the true line is? A. I say yet I don't know where the true line is; but the fence over there was there when I bought it, and he told me that was the true line. Q. And you kept that fence up, thinking it was in the true line? A. That's what I did. Q. And that it embraced lands that you had a deed for? A. Yes, sir; I put up the Fair Ground fences all according to that line. Q. And you didn't intend to claim any land except what you had a deed for? A. That's all I claimed. Q. You expected to go to the end of your deed and no further. That is correct, isn't it, Mr. Marshall? A. Yes, sir; that is all the further I expected to go. Q. What land did you actually claim? A. I claimed that land all that was fenced at that time. Q. Because you thought it was in your deed; is that it? A. I thought it was in my deed, and thought it was my land, because he showed me the land when I bought it, and that is the line he showed me."

There was no evidence in the case tending to show that Marshall or defendants intended to only claim to the true line, wherever that might be.

David W. Hill, of Poplar Bluff, for appellant. Hope, Green & Seibert, of St. Louis, and John A. Gloriod, of Poplar Bluff, for respondents.

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

I. There are two different and distinct situations which may arise in a boundary dispute, where the parties have held possession in ignorance of the true line. If the intention has been to hold only to the true line, wherever that may be, then the previously held...