Nickey v. Leader

• Decision Date: 01 June 1911
• Citation: 138 S.W. 18,235 Mo. 30
• Parties: LEANDER F. NICKEY and WARREN S. RANDALL, Appellants, v. C. H. LEADER
• Court: Missouri Supreme Court

138 S.W. 18

235 Mo. 30

LEANDER F. NICKEY and WARREN S. RANDALL, Appellants, v. C. H. LEADER

Supreme Court of Missouri, First Division

June 1, 1911

Appeal from Butler Circuit Court. -- Hon. Jesse C. Sheppard, Judge.

Affirmed.

E. R Lentz for appellants.

(1) Plaintiffs chain of title is clear and unbroken from the United States down to plaintiffs for all of the northeast quarter of the southwest quarter of section 10 which includes the land in controversy. This is not questioned. (2) The defendant has shown no paper title to the land in controversy. (3) Possession by Marshall of the house and inclosed land, from the time he sold to Randall down to the time he put the Dunnings into possession of the land, was not adverse to his grantee Randall. The testimony all shows that neither knew where the true line was, and neither intended to claim anything beyond the true line. Under such circumstances Marshall's possession was not adverse and the defendant even though an innocent purchaser, cannot tack to his own possession that of Marshall's. Wood on Lim., p. 581, sec 271; University v. McCune, 28 Mo. 481; Haux v. Batteen, 68 Mo. 84; Huckshorn v. Harting, 81 Mo. 648; Keen v. Schmedler, 92 Mo. 516; Skinker v. Haagsma, 99 Mo. 208; King v. Evans, 107 Mo. 487; Adkins v. Tomlinson, 121 Mo. 487; McWilliams v. Samuel, 123 Mo. 659; Ernstring v. Glenson, 137 Mo. 597; such occupation will not work disseizin in favor of either. Crawford v. Ahrens, 103 Mo. 88; Finch v. Ullman, 105 Mo. 255. In the absence of evidence of intention to hold adversely it will be presumed that the intention was to hold only to the true line. Hamilton v. West, 63 Mo. 73. (4) Marshall's deed to Randall was for an undivided one half interest in and to the land conveyed. This deed was dated February 23, 1895. The other undivided one half interest in and to the said land remained in Marshall down to September 28, 1898, when he conveyed the same to the plaintiff Nickey. So that from February 23, 1895, to September 28, 1898, Marshall and Randall owned the said land as tenants in common. There is no evidence of any kind showing or tending to show an ouster by Marshall of his co-tenant Randall, nor of any intention on his part to oust his co-tenant. Hence Marshall's possession was Randall's possession and there could be no such thing as an adverse possession by Marshall as against his co-tenant Randall until there had been an ouster of Randall by Marshall. The possession of one tenant in common is the possession of all. Bernecker v. Miller, 40 Mo. 474; Davis v. Givens, 71 Mo. 94; Warfield v. Lindell, 38 Mo. 561; Sutton v. Casselegi, 5 Mo. 111; Rodney v. McLauglin, 97 Mo. 426; Long v. McDow, 87 Mo. 197; Stevens v. Martin, 168 Mo. 410; Peck v. Lockridge, 97 Mo. 559. There is not a single fact or circumstance in evidence in this case showing or tending to show an ouster by Marshall of his co-tenant Randall.

Ernest A. Green for respondent.

(1) The judgment should be affirmed since appellant's abstract of the record is not a compliance with the rules of this court. The abstract proper and the bill of exceptions both wholly fail to show that the motion for a new trial was filed at the same term of court as that at which the judgment was rendered; the abstract proper and the bill of exceptions both also wholly fail to show that the motion for a new trial was filed and overruled in term time; they also fail to further fail to show that the affidavit for an appeal was filed and an appeal was granted during the same term of court as that at which the motion for a new trial was overruled. The abstract further fails to show that the case was ever filed in this court. Sec. 2048, R. S. 1909; Harding v. Bedoll, 202 Mo. 632; Clay v. Pub. Co., 200 Mo. 665; Everett v. Butler, 192 Mo. 564; Harris v. Wilson, 199 Mo. 412; State v. Fawcett, 212 Mo. 729; Stark v. Zehnder, 204 Mo. 442; Hawks v. Hawks, 218 Mo. 670; Cooper W. & B. Co. v. Cornell, 131 Mo.App. 344; Novinger v. Railroad, 131 Mo.App. 337. (2) Even were the abstract of the record a compliance with the rules of this court, yet it is not sufficient for an examination of the ruling of the trial court on the whole case. Before this court will review the ruling of the trial court on the whole case, the full record must be before the court, including the questions and answers, in order that a complete understanding may be had of the evidence. Sec. 2048, R. S. 1909; Rule 13 of this Court; Nash v. Hydraulic P. B. Co., 109 Mo.App. 600; Moore v. Harmes, 123 Mo.App. 34. (3) The undisputed testimony shows that defendant is entitled to the possession of this house and lot by reason of the ten-year Statute of Limitations, i. e., he and his grantors have been in the actual, open, hostile, notorious, continuous and adverse possession of said premises, claiming title thereto under color of title, against all the world, including these appellants, for more than ten years preceding the institution of this suit. Hendricks v. Musgrove, 183 Mo. 300; Peck v. Lockridge, 97 Mo. 549; Campbell v. Laclede Gas Co., 84 Mo. 374; Hutson v. Hutson, 139 Mo. 235; Dunlap v. Griffith, 146 Mo. 283; Whitaker v. Whitaker, 157 Mo. 353; 13 Am. and Eng. Ency. Law (1 Ed.), 1114; Warfield v. Lindell, 38 Mo. 561; LaPeyre v. Paul, 47 Mo. 586; 1 Cyc. 1074; Oglesby v. Hollister, 9 Am. St. 177; 1 Cyc. 1039.

OPINION

GRAVES, J.

Plaintiff sues in ejectment for a small tract of land near the city of Poplar Bluff in Butler county, Missouri. The petition is in the usual form. Damages are charged to be $ 100, and monthly rents and profits are fixed by the petition at $ 5 per month. The answer is the ten-year Statute of Limitations and a general denial. Reply a general denial.

Points are made as to the sufficiency of the abstract. It will suffice at his point to state that there was a trial before the court without the intervention of a jury and a general finding and judgment for the defendant. From this judgment the plaintiff has appealed. The points as against the sufficiency of appellant's abstract we take first.

I. There has been tendered an additional abstract of record and with it an application for permission to file. This application together with the tendered additional abstract was taken with the case, so that the court has reserved the right to pass upon such application and additional abstract at this time. This additional abstract, so tendered, is dual in character, and both parts thereof deserve attention. In the first place, there is presented the abstract of a record of the circuit court supplying a lost bill of exceptions; and, secondly, there are presented certain amendments to the abstract of record as first pointed out and filed, which amendments go to matters other than the order supplying the alleged lost bill of exceptions. We gather that the bill of exceptions in the case had been misplaced or lost, but that a copy thereof was in existence. Whilst this situation prevailed the printed abstract of the record was prepared. Respondent filed his additional abstract of record, and in it suggests that there is no bill of exceptions on file in the case, but charges that there is pending and undetermined a motion asking the circuit court to supply the bill of exceptions. Respondent then suggests certain things in the proposed supply bill of exceptions, which does not appear in the abstract of record. The motion to supply the bill of exceptions and all the proceedings thereon were taken after the first abstract of record was filed here.

This question is not strongly urged here by the respondent, but we take it that even if were there would be no substance therein. When the original bill was filed the record of the case was complete. When the supply bill was filed it related back to the filing of the original and stood as and for the original, and this additional abstract in this regard only supplies a matter not in existence at the time the first was printed. Of course, counsel take chances in printing an abstract of record without there being on file a bill of exceptions, but if the supplied bill of exceptions accords with their abstract the parties should be entitled to show such fact. As to this point the additional abstract should be and is received and considered.

The second question is not of such easy solution. Respondent, in his brief filed, challenges the sufficiency of the printed abstract in certain particulars, and by the proposed amendments, these suggestions are met. This we have held cannot be done. In the case of Harding v. Bedoll, 202 Mo. 637, after reviewing our former cases on the subject of supplemental abstracts, we said: "The foregoing seems to be the rule as to supplemental abstracts of record. To say the least they should not be filed without leave of court and if so filed will not be considered. We will add further that if for any reason the original is so faulty in stating material facts of record as to authorize the sustaining of suggestion to dismiss the appeal or writ of error, no leave should be granted after the opposite party has served his brief or other writing calling attention to the defects. To hold otherwise, would, as Judge Gantt practically says, place a premium upon negligence in the preparation of abstracts."

The amendments offered in this case were tendered to meet the objections in a brief filed by respondent. Upon this question we think the Bedoll case properly states the rule. There is then left for consideration the fact as to whether or not the abstract of record unamended is sufficient, for under the authority of the Bedoll and subsequent as well as prior cases, a supplementary abstract should not be permitted after challenge has been made, where the original is so defective as to authorize the sustaining of a suggestion to...