Riley v. La Font

• Decision Date: 01 November 1943
• Docket Number: No. 38375.,38375.
• Citation: 174 S.W.2d 857
• Parties: RILEY et al. v. LA FONT et al.
• Court: Missouri Supreme Court

174 S.W.2d 857

RILEY et al. v. LA FONT et al.

No. 38375.

Supreme Court of Missouri, Division No. 2.

November 1, 1943.

Appeal from Circuit Court, New Madrid County; Louis H. Schult, Judge.

Action in ejectment by H. C. Riley, Jr., and others against William L. LaFont and others. From a judgment for plaintiffs which also determined title to the premises, and quieted the same in plaintiffs, defendants appeal.

Judgment for plaintiff in ejectment affirmed, and judgment determining title reversed.

Edward F. Sharp, of New Madrid, for appellants.

Merrill Spitler, of New Madrid, for respondents.

LEEDY, Judge.

The "judgment and decree" appealed from was in favor of plaintiffs on their action in ejectment. It also determined title to the premises in question, and quieted the same in plaintiffs, and defendants have appealed. We have reached the conclusion that, for reasons presently to be noticed, the adjudication of title was unauthorized under the pleadings. Jurisdiction of the appeal is, nevertheless, in this court, the rule being "If the judgment rendered determine title, that is sufficient to classify the controversy, and title is involved in the constitutional sense, regardless of whether or not the pleadings are broad enough to sustain the judgment." State ex rel. Brown v. Hughes, 345 Mo. 958, 137 S.W.2d 544, 545.

The record and briefs present some uncertainty and confusion as to whether the proceeding is one in equity, and therefore triable de novo on the record below, or whether it is an action at law, and hence governed by another and divergent formula in relation to appellate review. Respondents' brief says the "suit was filed as an ejectment suit," but contends it was "converted by the answer to a suit in equity." However, their abstract makes the express recital that "a jury having been waived," the cause was submitted, taken under advisement, etc. Moreover, the motion for new trial complained (and it is carried forward here as the matter of chief insistence, under the second assignment of error) as follows: "Because the Court erred in refusing to declare the law to be that where shortage exists in the measurement of a platted area that such shortage should be prorated among the several lots contained therein, so that each lot would bear its proportionate share of such shortage." (Italics ours.)

It is conceded plaintiffs and defendants are the owners of adjoining lots in the Hunter, Phillips, McCoy and Tanner Addition to the City of New Madrid, and that they reside on their respective lots. The lots front on Davis Street, an east and west thoroughfare, and, according to the recorded plat of the addition, both lots are of equal size, each having a frontage of 40 feet and a depth of 200 feet. Lot 6, owned by the plaintiffs, lies west of lot 7. The controversy is as to the dividing line between the two. The strip in question is some 200 feet in length, and tapers from a width of 3 feet at the north end to approximately 9 feet at the south end. The contention of the plaintiffs is that defendants have encroached westward onto lot 6 to the extent just mentioned, and this is denied by the defendants.

Plaintiffs' petition was in conventional form. It is a duplicate of Form No. 64, page 4031, Vol. III R.S. '39, Mo.R.S.A. Defendants' answer consisted of five separately numbered paragraphs, each containing a prayer. Paragraph I consisted of a specific denial of plaintiffs' right to possession, coupled with a general denial of "each and every other statement, allegation or averment" in the petition contained, and concluded with a prayer that defendants "may go hence and recover * * * their costs." Paragraph II sets up a plea of adverse possession under the ten-year statute of limitations, and concludes with the identical prayer contained in Paragraph I. Paragraph III pleads that plaintiffs are estopped from claiming any interest in the strip by reason of the fact that they knew of, and consented to, defendants setting out trees, shrubbery, and flowers, and erecting a garage and chicken house thereon, and that they stood by, and without objection, saw defendants expending money on said improvements....