Norton v. Kowazek

• Decision Date: 19 December 1921
• Docket Number: No. 21617.,21617.
• Citation: 235 S.W. 1063
• Parties: MORTON v. KOWAZEK et al.
• Court: Missouri Supreme Court

235 S.W. 1063

MORTON v. KOWAZEK et al.

No. 21617.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

Appeal from Circuit Court, Audrain County; E. S. Gantt, Judge.

Action by John Norton against William Kowazek and another. From a judgment for plaintiff, defendants appeal. Affirmed.

R. D. Rodgers, of Mexico, Mo., and Avery & Killam, of troy, for appellants.

Clarence A. Barnes, of Mexico, Mo., Hostetter & Haley, of Bowling Green, and Sutton & Huston, of Troy, for respondent.

JAMES T. BLAIR, C. J.

This is a second appeal (Norton v. Kowazek, 193 S. W. 556) in an action plaintiff brought to quiet title and in ejectment. The land is in Lincoln county. The land originally involved is described in the former opinion, to which a reference is made in lieu of a redescription. Upon the return of the cause to the circuit court plain.. tiff abandoned his claim to the land in section 10, designated in the former opinion as the "north tract," and amended his petition accordingly. The tract now in question is called the "south tract," and is located in the north part of section 15. It consists of 3.71 acres of land and an acre or more in the bed of the Cuivre river. The case was tried to the court, sitting as a jury. At the close of the evidence defendants asked the court to direct a verdict for them. The request was refused. Defendants then asked declarations of law covering their theory of the case. These were given. Plaintiff asked no declarations of law, and the court gave none on its own motion. The court found for plaintiff and rendered judgment accordingly, and defendants appealed. They contend in this court that the evidence required a finding in their favor, and that, consequently, the trial court erred in refusing to direct a verdict for them. Defendants now admit that neither they nor their predecessors in title ever had any record title, and the argument advanced concedes, by necessary implication, that neither they nor those under whom they claim ever had color of title. In short, they base their claim of title solely upon actual adverse possession of themselves and their predecessors in title, to whose asserted possession they seek to tack their own. The evidence in the main is much like that set out in the opinion on the former appeal.

I, The evidence relied upon to establish adverse possession is oral. Plaintiff neither conceded nor proved adverse possession by defendants or any other than himself. This alone justified the refusal to direct a verdict for defendants, since "the judge has no right to' tell the jury that it shall or shall not believe" the testimony of witnesses. State ex rel. Pabst Brewing Co. v. Ellison. 226 S. W. 579, and cases cited; St. Louis Union Trust Co. v. Hill, 283 M. 278, 223 S. W. 434. The decision in Milligan v. Fritts, 226 Mo. 189, 125 S. W. 1101, is not in point. In that case a judgment for plaintiff was reversed. There plaintiff's evidence as well as defendants' showed the possession upon the existence of which this court directed a judgment for defendant. Neither, according to the opinion, did plaintiff question that possession in this court. That was a boundary line dispute, and the effect of the decision was that open possession, coupled with the exercise of acts...