Porter v. Gaines

• Decision Date: 12 July 1899
• Citation: 151 Mo. 560,52 S.W. 376
• Parties: PORTER v. GAINES.
• Court: Missouri Supreme Court

52 S.W. 376

151 Mo. 560

PORTER v. GAINES.

Supreme Court of Missouri, Division No. 1.

July 12, 1899.

ADVERSE POSSESSION — NATURE OF CLAIM TO LAND — WILLS — DESCRIPTION OF LAND — DIVISION OF SURPLUS LANDS.

1. In ejectment based on adverse possession, testimony that plaintiff had said that he did not claim by adverse possession was admitted; and the court charged that, if plaintiff had not claimed by adverse possession, he could not recover. Held, that the admission of this evidence and the charge were error, as plaintiff could support his action by any title which the evidence showed.

2. A testator devised a tract of land to his three sons, — to one, the N. 40 acres; to the others, the E. ½ and W. ½, respectively, of the remaining 80 acres. One of the sons deeded his share (40 acres) by metes and bounds. Held, that the metes and bounds of this deed do not establish the boundary line, as against the others.

3. A testator owned the W. ½ of the N. W. ¼ of section 36, and the E. ½ of the E. ½ of the N. E. ¼ of section 35, forming one tract of about 120 acres. He devised the N. 40 acres to one son, the E. ½ of the remaining 80 acres to another, and to the third the W. ½. The W. ½ of the N. W. ¼ of section 36 contained a surplus. Held that, in an action to establish the boundary line between the W. ½ and the E. ½ of the balance, the surplus should be equally divided between the owners of those two lots.

Appeal from circuit court, Platte county; William S. Herndon, Judge.

Ejectment by John H. Porter against Edwin Gaines. From a judgment for defendant, plaintiff appeals. Reversed.

N. B. Anderson and John W. Coots, for appellant. A. D. Burnes and Jas. W. Coburn, for respondent.

BRACE, P. J.

This is an action in ejectment to recover a strip of land in the W. ½ of the N. W. ¼ of section 36, township 52, in the county of Platte, contained within the following metes and bounds: "Beginning at a point on the east line of said W. ½ of the said N. W. ¼ 54 rods south of the section line, and running thence west 60 rods, thence south one rod, thence east 60 rods, thence north one rod, to the place of beginning." The petition is in common form. The answer is a general denial. The verdict and judgment were for the defendant, and the plaintiff appeals.

The common source of title is William Porter, late of said county, deceased, who died seised and possessed of the W. ½ of the N. W. ¼ of section 36, and the E. ½ of the E. ½ of the N. E. ¼ of section 35, in said township and range, which were disposed of by his last will and testament, admitted to probate on the 6th of February, 1852, as follows: "It is also my will and desire that my said wife shall possess and enjoy my home tract of land, consisting of one hundred and twenty acres, more or less, so long as she lives; and then my desire is that my three sons, namely, John, Enoch, and Thomas H. Porter, shall inherit by virtue of this will said tract of land in the manner following; that is to say, I will to my son John Porter forty acres of said tract on the north thereof, so as to include a spring of water thereon, and I will to my son Enoch the west half of the remaining eighty acres of land, and I further will to my said son Thomas H. Porter the east half of the remaining eighty acres of land." In 1878 the defendant, by deed from Thomas H. Porter, acquired title to the 40-acre tract devised as aforesaid to the said Thomas H.; and in 1891 the plaintiff, by mesne conveyances, acquired title to the tract devised to John. For many years prior thereto there had been a division fence between the tract of the plaintiff and the defendant. Thomas H. Porter, the defendant's grantor, testified that in 1874 or 1875 he and Enoch Porter, plaintiff's grantor, who then owned plaintiff's tract, agreed on a line running east and west between the two tracts, and built this fence on that line, which was thereafter...