Owens v. Thomas

• Decision Date: 12 November 1936
• Parties: M. C. Owens and Della Owens v. W. A. Thomas and Cora Thomas, Appellants
• Court: Missouri Supreme Court

98 S.W.2d 561

339 Mo. 532

M. C. Owens and Della Owens v. W. A. Thomas and Cora Thomas, Appellants

Supreme Court of Missouri

November 12, 1936

Appeal from Pemiscot Circuit Court; Hon. John E. Duncan Judge;

Reversed and remanded (with directions).

N C. Hawkins for appellants.

(1) Overruling the demurrer was error. (a) Plaintiffs must recover, if at all, on the strength of their own title. Brown v. Simpson, 201 S.W. 898; Nichols v Tallman, 189 S.W. 1184. Plaintiffs failed to show any right of possession or title in themselves, in or to the tract in dispute, that is, they failed to show by deed or evidence, that the disputed tract was a part of any tract described in their deed or petition. (b) The petition was fatally defective. It described two tracts of land and sought to recover a strip of land "off of the above described tract of land" but did not say "off of" which tract. (c) For more than ten years prior to the filing of this suit, the defendants had had actual and adverse possession of the tract in dispute claiming title thereto up to the fence as an agreed boundary line, with knowledge of plaintiffs' grantors, and plaintiffs themselves and had title thereto by adverse possession and/or estoppel. Nichols v. Tallman, 189 S.W. 1184; Railsback v. Bowers, 257 S.W. 119; Diers v. Peterson, 234 S.W. 792; Journey v. Vikturek, 8 S.W.2d 975. (2) The finding of facts was erroneous in every respect, and excessive as to rental value and quantity of lands. (a) It was inconsistent within itself. (3) The judgment is erroneous on the face of the record, and otherwise erroneous in every respect both in substance and in form. (a) The judgment, for $ 5 per month for rents and profits, was ten times excessive. (b) It was not responsive to the issues, in that since a line or boundary was in dispute, the judgment failed to locate, fix or adjudge that line or boundary, so as to settle the controversy. Jones v. Eaton, 270 S.W. 105; Eversmeyer v. Broyles, 216 S.W. 317; Franklin v. Haynes, 25 S.W. 223.

McKay & Peal for respondents.

Defendants' first point for error is that the court erred in overruling their demurrer to the evidence. Defendants claim beyond the true division line by possession under color of title for a period of more than ten years, and unless defendants established such title, the finding and judgment of the court is for the right party. Adair v. Adair, 78 Mo. 630; Cole v. Roe, 39 Mo. 411; Manning v. Cole County, 181 Mo. 359.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This cause is in ejectment to recover a small strip of land in Pemiscot County. Trial was to the court without a jury, and judgment went for plaintiffs, and defendants, their motion for new trial being overruled, appealed.

Plaintiffs are husband and wife and so are defendants. The petition in form is conventional. The answer pleads adverse possession for more than ten years, and in a separate count asks that the court determine title. The land in controversy is a small strip off the south end of that part of lot 1 in the northeast quarter of the northeast quarter, Section 26 Township 20, Range 11. The court made a special finding of facts in which it is first recited that defendants entered into the possession of "a strip of ground or land 53 feet wide at the east end and 67 feet wide at the west end off the south side of lot No. 1 of the southeast quarter of Section 23, and all that part of lot 1 in the northeast quarter of the northeast quarter of Section 26, all in Township 20 north of Range 11 east." Next, the finding recites "that prior to the time of the purchase of the above said land by the plaintiffs that there had been erected a fence across the south end of the above described land which extended from a point at the east end of said tract of land 56 feet (north of the true line) and ran across the south end of said land to a point 67 feet north of the true south boundary line of said tract and that defendants wrongfully took possession of said strip of land." The court further found that "no true boundary line on the south end of said section of land had been officially established at or prior to the time defendants took possession of said strip of land;" and it was further found "that the possession of the defendants of such strip of land was not such as to constitute an adverse possession or invoke the ten-year Statute of Limitations so as to give defendants any right, title or interest in or to said strip of land." Damages in the sum of $ 15 was found and the monthly rental value was fixed at $ 5.

In the judgment, which immediately follows the finding of facts, the strip is described as "a strip of land 56 feet wide at the east end and 76 feet wide at the west end, lying north of the south boundary line as established by Charles S. Reynolds, civil engineer, and lying between said old fence line and said true south boundary line of the first above described land." Defendants point out the discrepancies in the figures respecting the width of the strip at the east and west ends in the finding of facts and the judgment, and also point out other defects in description. We have indicated some of these defects and discrepancies by italics. In view of our disposition of this cause, it is not necessary to especially deal with these discrepancies and defects. We might say, however, that we think the court intended to find and adjudge that the strip is 53 feet in width at the east end and 67 feet in width at the west end as plaintiffs plead in their petition. We think this is apparent, and also that 76 in the judgment was inadvertently written when 67 was intended, a mere typographical error by getting the figures transposed.

Defendants, appellants here, assign error: (1) On the overruling of their motion to make the petition more definite and certain; (2) on the refusal of a demurrer to the evidence at the close of the whole case; (3) on the exclusion of evidence; and (4) on an alleged excessive judgment as to the value of monthly rents. We rule these in the order stated.

The motion to make more definite is leveled at the description, in the petition, of the land sought to be recovered. It is alleged that on December 31, 1927, plaintiffs were entitled to the possession of all of lot 1 of the southeast quarter of Section 23 (we omit township and range) and all that part of lot 1 of the northeast quarter of the northeast quarter of Section 26, and being so entitled defendants, afterwards, and on December 31, 1927, "entered into said premises and unlawfully withhold from plaintiffs a strip of land 53 feet (in width) at the east end and 67 feet at the west end in width off of the south side of the said above described tract of land." Plaintiffs, in the petition, described their whole tract of land which lies in Sections 23 and 26, and the whole is described as a single tract. Lot 1 (a part at least) of the southeast quarter of Section 23 lies immediately north of that part of lot 1 in the northeast quarter of the northeast quarter of Section 26. The location of the strip is, we think, quite clear in the petition, when the whole description is regarded as one tract. Hence, the motion to make more definite was properly overruled.

Was the demurrer to the evidence properly refused? This assignment goes to defendants' claim of adverse possession. The original petition was against defendant, W A. Thomas, only, and was filed February 11, 1930. October 22, 1932, an amended petition was filed making defendant, Cora Thomas, a party, and she was served with process same day the first amended petition was filed. The cause was tried on a second amended petition. It is conceded that the common source of title was in John G. Hoyt, who, on March 1, 1928, conveyed to plaintiffs, by the entirety, "all of lot 1 of the southeast quarter of Section 23, and all that part of lot 1 of the northeast quarter of the northeast quarter of Section 26," containing in the aggregate 38.85 acres, more or less. March 20, 1925, Hoyt conveyed to defendants, by the entirety, "all that part of lot 1, lying north and west of the center of ditch No. 66, in the southeast quarter of the northeast quarter of Section 26," containing 25.95 acres, more or less. The strip in question is within the meander line of Little River and it was shown (although the government plat was not introduced) that when the government survey was made no subdivision lines were established, at least, not for that part of Sections 23 and 26 mentioned in this record. The fence mentioned above was on the north line of the strip, and this fence was erected in 1919 by one Connoy, who at that time was in possession of the land immediately north of the strip in question. Defendants claim that their possession, for the purpose of their defense of adverse possession, commenced in 1919. Arthur Fisk had entered into a contract with Hoyt for the land later conveyed by Hoyt to defendants, and defendants bought Fisk's interest and the Fisk contract was assigned to them, but defendants in their own name entered into a new contract with Hoyt. Defendants went into possession of the strip, and the land immediately south, in the spring...