Nothstine v. Feldmann

• Decision Date: 23 February 1923
• Docket Number: No. 23177.,23177.
• Citation: 250 S.W. 589,298 Mo. 365
• Parties: NOTHSTINE v. FELDMANN, et al.
• Court: Missouri Supreme Court

250 S.W. 589

298 Mo. 365

NOTHSTINE v. FELDMANN, et al.

No. 23177.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Motion for Rehearing Denied April 9, 1923.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

Action by Elias W. Nothstine against Catherine Feldmann and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded for new trial.

Dumm & Cook, of Jefferson City, and Pearson & Pearson, of Louisiana, Mo., for appellants.

Irwin & Haley, of Jefferson City, John W. Booth, of Union, and Jesse H. Schaper, of Washington, Mo., for respondent.

Statement.

RAILEY, C.

This action was commenced in the circuit court of Franklin county, Mo., on May 15, 1920, in two counts. In the first count plaintiff claimed to be the owner in fee simple of the following described real estate, situate in Franklin county, Mo., to wit:

A tract of land being part of sections 26 and 27, township 45 north, range 2 west of the Fifth Principal Meridian, as surveyed and subdivided by Jesse F. Ekey, county surveyor of said county, by Edgar Rapp, deputy, as shown by plat and field notes of survey tiled in the office of the clerk of the county court of Franklin county, and approved by said court on April 7, 1919, and described as: Beginning at a point in the county line between Warren and. Franklin counties, according to a survey and plat thereof, marked "Exhibit A," made by Benjamine F. Frick, county surveyor of Warren county, lie., on May 7, 1918, and approved by the circuit court of St. Louis county, by an order and decree made by said circuit court of record in the case of Elias W. Nothstine, Plaintiff, v. Warren County, Defendant, No. 29316, in July, 1918, a certified copy of which order and decree of court is recorded in the office of the recorder of deeds within and for Franklin county, in Book 85, p. 382, etc.; said point being south 81 degrees 13 minutes west 4.33 chains from corner No. 7 on said county line survey, thence south 81 degree 13 minutes west along said county line 14.54 chains, to a point in east line of Meyer's claim, thence south 33 degrees west along Meyer's line 31.12 chains to an iron rod, thence due south 11.00 chains to a point, thence south 54 degrees 25 minutes east 16.34 chains, thence south 53 degrees 13 minutes east 7.63 chains, thence south 50 degrees 36 minutes east 9.36 chains, thence south 48 degrees 29 minutes east 6.50 chains, thence south 48 degrees 10 minutes east 4.95 chains to a point, thence south 89 degrees 15 minutes east 1.64½ chains to the southwest corner of claim of Bocklage et al., thence north 1 degree 38 minutes east along line of last-named claim 23.80½ chains to the northwest corner of Bocklage claim, thence south 89 degrees 45 minutes east 18.62½ chains to corner of Bocklage claim, thence north 45 minutes west 38.20 chains to the southeast corner of George Hellebusch claim, thence north 88½ degrees west along south line of George and Benjamin Hellebusch 23.52 chains to southwest corner of Benjamin Hellebusch, thence north 1% degrees east 4.24 chains to place of beginning, containing 227.56 acres, more or less, according to plat thereof made by Jesse F. Ekey, county surveyor of Franklin county, Mo., by Edgar Rapp, deputy, December 16-20, 1919, recorded in Book 8, p. ____ Surveyor's Record of said county.

Said count then charges that defendants claim to have a title, estate, or interest in said real estate. It concludes with a prayer asking that the title, estate, or interest of the plaintiff and the defendants respectively in said real estate be by the court ascertained and determined; and that the court by its judgment and decree adjudge the title, estate, and interest of plaintiff and the defendants in and to said real estate.

Plaintiff charges in the second count of petition that on April. 7, 1919, he was entitled to the possession of the real estate aforesaid; that on April 8, 1919, defendants entered into possession of said premises, and unlawfully withheld from plaintiff the possession thereof to his damage in the sum of $5,000; that the monthly value of the rents and profits of said premises is $300. Said count concludes with a prayer for the recovery of said premises, and $5,000 damages for the unlawful withholding of same from plaintiff; and $300 for monthly rents and profits, from the rendition of judgment, until possession thereof is delivered to plaintiff, and for costs, etc.

The answer of said defendants to each count of said petition alleges, in substance, that the boundary line dividing the counties of Warren on the north, and Franklin on the south, Is "the Middle of the main channel of the Missouri river"; that the real estate described in petition is on the north side of "the main channel of the Missouri river," and is in Warren county aforesaid; that this action was commenced in Franklin county, Mo., and the venue removed to Cole county aforesaid; that by reason of the foregoing, the Cole circuit court acquired no jurisdiction over the subject-matter of this action; that defendants plead the want of jurisdiction of the Cole circuit court, as a bar to any further procedure. Defendants further allege in said answer that the land attempted to be described in petition is indefinite and uncertain; that the calls in said description are from, and to, points and lines, local and private, without a single call for a point or line based on any public monument, line, or survey; that the alleged boundary line dividing Warren and Franklin counties is erroneous, arbitrary, and asserted without the semblance of authority to support said contention; that the description of said land in petition is so indefinite and uncertain, appellants do not know, and cannot determine, whether plaintiff is attempting to describe the land or a part thereof which" defendants claim to own and are in possession of; that the only tract of land which defendants do own and are in possession of lies in township 45 north, range 2 west of the Fifth P. M., an accurate description of which is hereafter set out. Defendants in said answer deny that plaintiff has any interest in the lands hereafter described and claimed by them. They further allege that through their immediate, mesne, and remote grantors and ancestors, they are now, and have been, in the open, notorious, and continuous, adverse possession of the lands hereafter described, claiming ownership of same, as against the world, commencing with the year 1834, when the United States issued a patent or patents to one Alexander McKinney; and defendants plead said possession for more than 10 years, as a bar against this action. Defendants further allege in said answer that the only land which they claim to own and hold possession of, lying in township 45 north, range 2 west of the Fifth P. M., is in Warren county, Mo., and described as follows:

A tract of land containing 58.37 acres situated in the northwest fractional quarter of section 27, township 45 north, range 2 west, bounded as follows: Beginning at a concrete block with a two-inch pipe in the center thereof, the same marking the common corner to sections 21, 22, 27, and 28, running thence S. 1 deg. 0' W. with the section line 1.70 ch. to a ¾-inch rod set at the intersection of the north line of United States survey No. 1697 with the said section line; running thence with the north line of said survey No. 1697, S. 57 deg. 0' E. 34.41½ ch. to buggy axle marking the northeast corner of aforesaid survey; running thence with the east line of said survey S. 32 deg. 46' W. 26.10½ ch. to a set gate hinge; thence east 15.20 ch. to a set post; thence N. O. deg. 50' E. 42.50 ch. to a 1-inch rod set on the north line of aforesaid section 27; running thence west with the section line 30.60 ch. to the point of beginning.

A tract of land containing 192.13 acres situated in the southwest part of section 27, township 45 north, range 2 west, and bounded as follows: Beginning at an axle 2 inches in diameter set at the common corner to sections 27, 28, 33, and 34; running thence N. 1 deg. 0' E. with the section line 14.98 ch. to a buggy axle set at the intersection of the east line of United States survey No. 1697, with the) said section line; running thence with the east line of said survey N. 32 deg. 46' E. 29.37 ch. to a set gate hinge; thence east 38.69 ch. to a set post; thence south 37.00 ch. to a set ½-inch rod; thence west 18.62 ch. to a set railway rail coupling; thence south 2.67 ch. to a set buggy axle on the south line of above said section 27, 5.00 ch. W. of the quarter section corner; running thence with the section line west 36.24½ ch. to the beginning.

A tract of land containing 33.35 acres situated in the northwest quarter of section 34, township 45 north, range 2 west, bounded as follows: Beginning at an axle 2 inches in diameter, set at the common corner to sections 27, 28, 33, and 34 or above said township and range; running thence with the south line of section 34 east 36.24½ ch. to a set buggy axle; thence south 22.37½ ch. to a set ½-inch rod; thence N. 51 deg. 37' W. 28.22 ch. to a set 1-inch square iron bar; thence N. 70 deg. 54' W. 14.98 ch. to the beginning.

It is further alleged in said answer that these defendants are the children and heirs of Heinrich Feldmann, deceased, and inherited the above-described land from him; that said land was conveyed to said Heinrich Feldmann in 1870, for $14,000, which was paid by him to his grantors; that he went into immediate possession of said land, and since said date said Heinrich Feldmann, and these defendants, have been in the continuous, actual, open, and notorious possession, claiming the same against all the world, and paying taxes thereon to Warren county and the state of Missouri; that if the whole, or any part, of said land attempted to be described la plaintiff's petition, is identical with any, the whole or any part of above-described tract of land (which defendants are unable to...