Sands v. Clark

• Decision Date: 06 April 1923
• Docket Number: No. 23440.,23440.
• Citation: 250 S.W. 58
• Parties: SANDS v. CLARK.
• Court: Missouri Supreme Court

250 S.W. 58

SANDS v. CLARK.

No. 23440.

Supreme Court of Missouri, Division No. 1.

April 6, 1923.

Appeal from Circuit Court, Adair County; James A. Cooley, Judge.

Action by Charles S. Sands against Fannie D. Clark. Judgment for defendant, and plaintiff appeals. Affirmed.

Shelton & Shelton, of Macon, for appellant.

Campbell & Ellison, of Kirksville, for respondent.

LINDSAY, J.

On the 25th day of October, 1919, the appellant brought suit against the respondent in the circuit court of Adair county to determine title to a certain narrow strip of land. Upon the trial, defendant prevailed, and this appeal was taken by the plaintiff. The petition alleged that plaintiff was the owner in the fee simple and in possession of the land described as follows:

"Beginning at a point seventy-five (75) feet, ten (10) inches north of the southeast corner of lot one (1), block seven (7), Wilson's addition to the city of Kirksville in Adair county, Missouri; thence north fourteen (14) inches, thence west one hundred eight (108) feet; thence south two (2) feet six (6) inches; thence in an easterly direction on a direct line to the point of beginning."

The petition, after asking that the title, estate, and interest of the respective parties be defined and adjudged, prayed that the court finally determine—

"any and all rights, claims, interests and demands whatsoever of the parties, or either of them, concerning or affecting said real property, and award complete relief, whether legal or equitable to the several parties or either of them."

The answer alleged adverse possession and claim of ownership by defendant for more than 10 years next before the 13th day of March, 1913, the making of valuable and lasting improvements thereon during that period, and that plaintiff owned and claimed to own the land absolutely, having purchased the same more than ten years before the 13th day of March, 1916. The answer further alleged that, on the 13th day of March, 1916, the plaintiff wrongfully and forcibly took possession of the land, and has since remained in possession; that on the 22d day of April, 1918, in an action begun and wherein process was served on the 22d day of March, 1916, by this defendant against this plaintiff, it was adjudged that the defendant herein was entitled to possession of the land; that after plaintiff herein took possession on March 13, 1916, he constructed a trench, the north wall of which extends along the north line of the land, and afterwards, and after service of process in and pending said suit for possession, he filled said trench with concrete, and thereafter erected thereon a brick wall 15 or 18 feet in height, extending the full length of the land, and that the north line of the wall is 14 inches south of the north line of the strip of land in suit. The defendant asked that she be adjudged the owner and entitled to the possession of the land, and for a decree that the concrete, and brick wall be removed, and the land restored to her, and for other and general relief. Plaintiff's reply was a general denial. A jury was waived, and the cause was heard by the court. The finding was against plaintiff, and affirmatively for defendant ; and the decree entered thereon granted in full the relief asked by defendant.

Plaintiff's title is by warranty deed from the widow and heirs of William H. Ivie, deceased, dated February 12, 1916, which conveyed lot 1 and the south one-third of lot 2 of the block and addition described in the petition. Defendant claims through her husband, James W. Clark, who purchased and received a trustee's deed made the 22d day of June, 1895, through a sale made under a deed of trust theretofore executed by a Mrs. Sholly. The transfer of title from James W Clark to his wife, Fannie Clark, was made in 1913. These deeds in defendant's chain of title described the property conveyed as the north two-thirds of lot 2 and south two-thirds of lot 3, in the block and addition mentioned. Said William H. Ivie had formerly owned this property also. The strip in controversy here, 108 feet long, east and west, 14 inches wide at the east end and 30 inches wide at the west end, is within and along the north boundary line of the south one-third of lot 2 and within the description in plaintiff's deed, and is not within the boundary line of the north two-thirds of said lot 2, and is therefore not covered by the description in defendant's deeds.

When James W. Clark bought the property and received the deed mentioned, it was improved residence property and in the possession of Sholly, the husband of Mrs. Sholly, who had died prior to the sale under the deed of trust. The property was completely inclosed, and the strip of land here in controversy was included within the inclosure.

There was a dwelling and a barn on the property. The barn was at the southwest corner of the inclosure, and the south end of the barn stood on the south line of the strip. From the southeast corner of the barn a fence extended eastward along the south line of the strip, to the sidewalk on the north, thence north, and west, and south to the barn. The evidence shows that defendant and her husband moved into the property thus inclosed in July, 1895, and ever since have occupied it as their home, claiming to be owners of it. The evidence is undisputed and is clear that the tract which defendant's husband intended to buy was the tract inclosed by the above-mentioned fence, and by the outer side and end of the barn. Shortly after they took possession they planted trees on the strip, and they planted and maintained shrubbery and flowers thereon along and immediately at the fence. Defendant's husband filled the lot to the fence, put in several hundred loads of dirt. He did this at the request of the adjoining owner on the south, said William H. Ivie, through whom plaintiff claims title, who had previously fillet his lot on the south up to this fence. Clark built a side walk, the south end of which extended to the south line of the strip. The title and right to possession of defendant and her husband to this strip was never disputed until 1916, when plaintiff took possession of it forcibly, cut about three feet off the south end of the barn, cut down the shade trees which they had planted, one of which was 18 inches in diameter, and destroyed the flower beds and shrubbery upon and along the south line of the strip in question. The fence on the south line was maintained until defendant's husband filled his lot up to the line occupied by the fence as requested by Mr. Ivie. After the entry on the strip by plaintiff, the defendant brought the action above mentioned for possession, and obtained judgment against him. The judgment remained in force and unexecuted. Plaintiff remained in possession of the strip, and, after that action was instituted, and plaintiff served with process therein, he put in the concrete, and afterwards erected the brick wall.

The defendant offered to prove by James W. Clark that in 1895, Mr. Ivie, then adjoining landowner on the south, pointed out the line between the properties, and said to him that the fence mentioned running from the southeast corner of the barn was the line between the properties. The plaintiff objected to this, and the court sustained the objection. When James W. Clark, husband of defendant, bought the property, he bargained for it with Sholly, whose wife, then deceased, had been the owner of it, subject to the deed of trust above mentioned. After looking over the property, Clark and Sholly agreed upon a price. In order for Clark to get title it was necessary to foreclose the deed of trust. This was done, and Clark bid and paid the price agreed upon, and received the deed mentioned.

It was expressly admitted on the trial that the strip in controversy was within the boundaries of the description in plaintiff's deed. Plaintiff's possession since March, 1916, was admitted, as was also the fact...