Ordelheide v. Berger Land Co.

• Decision Date: 24 December 1907
• Parties: ORDELHEIDE et al. v. BERGER LAND CO. et al.
• Court: Missouri Supreme Court

106 S.W. 620

208 Mo. 239

ORDELHEIDE et al. v. BERGER LAND CO. et al.

Supreme Court of Missouri, Division No. 1.

December 24, 1907.

1. NEW TRIAL — ORDER — SPECIFICATION OF GROUNDS.

An order granting a new trial for "error in finding as to facts and law" was too general to constitute a compliance with the statute requiring the trial court to specify in such order the ground or grounds on which the new trial was granted, intended for the information of the losing party and of the appellate court.

2. APPEAL — REVIEW — FIRST NEW TRIAL — EJECTMENT.

Under Rev. St. 1899, § 806 [Ann. St. 1906, p. 769], providing that a party aggrieved may appeal from any order granting a new trial, an order granting a first new trial in ejectment is subject to review on appeal, and will be reversed if the evidence is such that in no view of it can a verdict for the party in whose favor the new trial is granted be sustained.

3. EJECTMENT—DESCRIPTION — EXISTENCE OF LAND—SUFFICIENCY OF EVIDENCE.

Where, in ejectment, the land was described as Island 63 in the Missouri river, in section 6, township 45, range 3 west, "except 80 acres off the upper end," sold to W., all in Warren county, Mo., there being no description by which the eighty acres could be located with reasonable certainty, and it being doubtful whether the island, as it existed at the time suit brought, contained 80 acres in all, and plaintiff claimed under a tax deed conveying the title of a person not shown to have ever been in possession, but to have abandoned the land, plaintiff could not recover.

Appeal from Circuit Court, Warren County; H. W. Johnson, Judge.

Ejectment by F. A. Ordelheide and another against the Berger Land Company and others. From an order sustaining plaintiffs' motion for a new trial, defendants appeal. Reversed and remanded.

Jesse H. Schaper and J. W. Delventhal, for appellants. C. E. Peers, for respondents.

VALLIANT, P. J.

This is an appeal from an order sustaining a motion for a new trial. It is an action in ejectment for the possession of land described in the petition as: "Island 63 in the Missouri river in section 6, township 45, range 3 west, except 80 acres off the upper end sold to Wehmeyer, all in Warren county, Missouri." Defendants in their answer say that they are in possession, and are the owners in fee of all that part of the island lying southeast of a line specifically described in the answer.

On the trial the plaintiffs introduced the following documentary evidence, to wit: (1) A quitclaim deed from one Ferdinand Withaus December 10, 1892, to John Withaus to all the grantor's "interest in the northeast part of island No. 63, section 6, township 45, range 3 west, in the Missouri river." The deed was duly recorded. (2) A judgment in a suit wherein the state of Missouri, at the relation of the collector of revenue of Warren county, was plaintiff, and John Withaus or his unknown heirs were defendants, for delinquent taxes amounting to $6.24 for the years 1893, 1894, and 1895 against land described as follows: "Island No. 63 in the Missouri river in section 6, township 45, range 3 west, except eighty acres off the upper end sold to Wehmeyer." (3) The original petition in that case in which the land is described as shown above in the judgment, and two summonses for John Withaus, one to St. Louis county the other to Warren county, both returned not found. (4) Order of publication against John Withaus, if living, or his unknown heirs, if dead. (5) Sheriff's deed under that judgment October 26, 1898, conveying the land as last above described to the plaintiffs in this suit. The oral testimony for the plaintiff showed that there never was any particular part of the island assessed to John Withaus or, for that matter, to any one, it was assessed as 35 acres, in Island 63, to Withaus, and 35 acres to Berger Land Company. Whether Ferdinand Withaus was ever in actual possession the evidence does not show, but it does show that John Withaus was never in possession of any part of it, and never paid any taxes on it; after he got his deed he granted some parties the right to graze cattle on it, but when they attempted to do so they were warned to keep off by a man named Thee, who claimed to be the owner and they left. At the time of the suit for taxes John Withaus was living in St. Louis. He said he could not get a deed of good title and concluded to "let it go." The plaintiff's testimony also showed that at the time this suit in ejectment was brought it was very doubtful if any of the land they claimed was in existence, the river had washed away first one end of the island then the other, and first one side and then the other, and afterwards made accretions where it had before made erosions, so that...