Orth v. Dorschlein

• Decision Date: 31 March 1862
• Citation: Orth v. Dorschlein, 32 Mo. 366 (Mo. 1862)
• Parties: FREDERICK ORTH et al., Respondents, v. HUGO DORSCHLEIN, Appellant.
• Court: Missouri Supreme Court

32 Mo. 366

FREDERICK ORTH et al., Respondents,

v.HUGO DORSCHLEIN, Appellant.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Land Court.

This suit was brought on the 21st of September 1859, in the St. Louis Land Court, to recover forty-seven acres of land in St. Louis county.

On the trial, the plaintiffs proved that Martin Householder, Sr., bought a farm of one hundred and sixty acres in St. Louis county, of which the piece in dispute is a part, in July or August, 1838; that Martin Householder, a son of Martin Householder, Sr., rented the farm for 1837 from John L. Wood; that an American rented the farm for the year 1836 from said John L. Wood; that Martin Householder, Sr., took possession of said farm when he purchased the same, and occupied it for more than twenty years; that said Martin Householder, Sr., had six children; that he divided the said farm among his children, and they paid him ten dollars a year each, during his life; that he died on the piece in dispute; that one of his daughters, Maria Eva, married Frederick Orth, Sr.; that Maria Eva died, leaving only two children, the said plaintiffs; that David Manchester and wife, by deed dated November 21, 1834, conveyed the said land to John L. Wood, who conveyed the same to Martin Householder, Sr., by deed dated July 24, 1838; that Martin Householder and wife and the other heirs of Martin Householder, Sr., conveyed the piece of land in dispute to plaintiffs, by deed dated April 25, 1859.

The defendant proved that Frederick Orth, Sr., after the death of his first wife, the said Maria Eva, married a second wife, who is now the wife of defendant; that Frederick Orth, Sr., died, leaving a will, by which he devised all his interest in said land to his widow, who afterwards married the defendant.

At the instance of the plaintiff, the court gave the following instructions:

“If the jury believe from the evidence that the deeds read in evidence by the plaintiff are genuine; that Martin Householder died in possession of the land sued for; that said Martin Householder and those under whom he claimed the said land had the quiet and peaceable possession of said land for twenty years consecutively; that his heirs conveyed the said land sued for to the plaintiffs in this suit, then the jury will find for the plaintiffs, if the defendant was in possession of the land sued for at the commencement of this suit.”

Defendant's instructions refused:

1. If Martin Householder, Sr., was not in possession of the premises in question at the time of his death, then the...