Quisenberry v. Stewart

• Decision Date: 02 March 1920
• Docket Number: No. 20935.,20935.
• Parties: QUISENBERRY v. STEWART et al.
• Court: Missouri Supreme Court

219 S.W. 625

QUISENBERRY v. STEWART et al.

No. 20935.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Ejectment by Francis M. Quisenberry against Alma G. Stewart and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Jas. E. Boggs, of Columbia, for appellants. E. C. Anderson, of Columbia, for respondent.

GRAVES, J.

Action in ejectment by petition in usual form, alleging ouster on January 21, 1917, damages in the sum of $50, and monthly rents and profits at $1 per month. Answer is: (1) General denial; (2) an agreed line between adjoining properties, and possession under agreement for 20 years; and (3) adverse possession for more than 10 years, and a plea of the 10-year statute of limitations. Reply placed in issue all new matter in the answer.

Upon a trial before the jury the verdict was for the plaintiff for the possession of the premises, and the judgment followed the verdict. From such judgment the defendants have appealed. The errors assigned go to the admission of certain evidence in rebuttal, and the giving of instructions for plaintiff. These, and the pertinent facts, will be noted in the course of the opinion.

I. Plaintiff and defendants are owners of adjoining tracts of land. The land in dispute is a small irregular shaped strip, narrower at one end than the other, and was for some years within the fence boundaries of the land now owned by the defendants. The plaintiff put in evidence his paper title, and then a survey made by the county surveyor, and the testimony showed that the disputed strip was within the description called for by the paper title. " Upon such showing there was ample evidence to sustain the verdict of the jury for the plaintiff.

The defendants attempted to show (1) an agreed line, and continuous possession for more than 10 years under such agreement, and (2) adverse possession for more than 10 consecutive years. This is an action at law, and both of these issues were for the determination of the jury. There being ample evidence to support the verdict of the jury, this court cannot interfere with the jury's findings upon the facts, unless the court erred in the admission of the testimony complained of, or erred in the giving of instructions.

As to the two defenses pleaded, the credibility of defendants' evidence thereon was purely a question for the jury. The jury could believe or disbelieve it. Gannon v. Gas Co., 145 Mo. loc. cit. 514, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505 et seq.; Johnson v. Grayson, 230 Mo. loc. cit. 394, 130 S. W. 673; State v. Nicolay, 269 Mo. loc. cit. 695, 192 S. W. 1167; Mowry et al. v. Norman, 204 Mo. loc. cit. 191, 103 S. W. 15; Hunter v. Wethington, 205 Mo. loc. cit. 292, 293, 103 S. W. 545, 12 Ann. Cas. 529. In the latter case, supra, we said:

"As this case will have to be retried, there is one other question to be noted. Defendant contends that as two witnesses testified to the adverse possession in defendant for 10 years, the trial court could not do otherwise than to find for the defendant. This does not necessarily follow. The credibility of that testimony, although undisputed by direct testimony, was for the trier of the facts. Gannon v. Laclede Gaslight Co., 145 Mo. 502 [46 S. W. 968, 47 S. W. 997, 43 L. R. A. 505]."

So in the case at bar, for the testimony tending to show an agreed line with possession under the agreement, and the testimony tending to show adverse possession, is to have its credibility tested by the triers of the fact and not by this court. Unless there are errors in other regards, the judgment for plaintiff will have to stand.

II. However, we need not go to the full extent of the rule in the Gannon Case, supra, in this case. We succinctly state the rule of Gannon's Case in Mowry et al. v. Norman, 204 Mo. loc. cit. 191, 103 S. W. 19, thus:

"When the plaintiffs made out their prima facie case upon the question of undue influence by showing a state of facts from which there arose a presumption of undue influence, then the defendant was required to rebut the presumption, as the defendant in the Gannon Case was required to rebut the presumption of negligence. In the Gannon Case, the defendant by a mass of testimony rebutted the presumption, and as against this evidence the plaintiff offered nothing; yet by a majority opinion this court held that a peremptory instruction should not be given in such case, and the doctrine there applies with force and effect to the case at bar. The rule announced is that the credibility of that testimony was within the peculiar province of the jury for its judgment thereon, although undisputed. This case has been followed many times since."

But in the case at bar the chief witness as to the agreed line is one G. N. Akeman, who owned and lived upon the premises (now owned by defendants) for 5 successive years, leaving them in 1902. By him it was sought to show that he and the then owner agreed upon the division line, but his evidence is not clear as to there being an agreement. Among other things, he said that Dennis seemed to be satisfied with the line; that he (Akeman) thought it was the true line; that they both thought it was the true line. The jury might have concluded from this evidence of Akeman that the parties (who were then reconstructing the fence) were doing so upon the theory that they had the true line, and had no intention of claiming otherwise than to the true line. It is doubtful whether or not the jury would have been justified in finding from this evidence, and other testimony of like but weaker character, that the two then owners agreed upon a division line irrespective of where the true line was. It takes an agreement to make an agreed line. But as said, supra, the jury judged the credibility of this evidence, and if it tended to show an agreed line, they found against it, or disbelieved it.

III. What has been said likewise disposes of the matter of adverse possession. If two parties construct a division fence, thinking that they are putting it upon the true line, but with intention of claiming to the true line wherever it may be, then the occupancy of the land does not become adverse. Poard v. McAnnelly, 215 Mo. loc. cit. 387, 114 S. W. 990. The doctrine of an agreed line and possession under such agreement is likewise discussed in the above case, on the same page and et seq. The verdict of the jury settled all facts against defendants.

IV. After plaintiff made his case as stated in a previous paragraph, the defendants then put in testimony tending to show an agreed line and possession thereunder, and adverse possession for 10 years. The plaintiff then put on four witnesses in rebuttal, and these witnesses were objected to thus:

"Mr. Conley: We object to that evidence, for the reason that that could not deprive these defendants of any rights they acquired through the previous survey and agreed line and building a fence on it unless there had been a new agreed line and it had been acquiesced in for 10 years. It simply tends to confuse the issues in this case to bring in an issue of this kind there is no pretense that there was a new fence that had been there for 10 years. "The Court: How long had Gardner owned this land?

"Mr. Conley: I think a year.

"Mr. Anderson: Yes; April, 1914, to April, 1915.

"The Court: Upon what theory do you offer it, Mr. Anderson? The theory is that if title has been vested by the statute of limitations the title could not be divested by

"Mr. Anderson: The purpose is to show that there had been no agreed line.

"The Court: Well, objection overruled.

"(To which action of the court the defendants, by their counsel, then and there at the time duly excepted and saved their exceptions.)"

The objection appears only as to the first witness, but as it was all of the same general character, all may be considered as objected to by the defendants. This evidence tended to show: (1) That defendants' immediate predecessor in title, and the then owner of the tract to the south of it, had the line surveyed in 1915, before defendants bought; (2) admissions of one of the defendants that he knew the fence was not on the line; (3) consent of defendants for the removal of the fence; (4) that any one could see that the old fence was not on a straight line; (4) that defendant said it was not necessary to serve notice as to the strip of ground, "I would have turned it over to you anyhow"; (5) that plaintiff bought with the understanding that this strip was to be his; (6) evidence that tended to impeach the testimony of Mr. Stewart whilst on the witness stand, and to which conversations his attention was directed. In view of the defense as to an agreed line, we see no objection to this testimony. It showed how the predecessors of the Stewarts regarded the question. It tended in a way to rebut the idea of an agreed line:

V. The defendants assign as error the instructions given for the plaintiff. These instructions read:

"(1) The court instructs the jury that even if the defendants, and those under whom they claim, have been in the...