Schad v. Sharp

• Decision Date: 04 June 1888
• Citation: 95 Mo. 573,8 S.W. 549
• Parties: SCHAD v. SHARP.
• Court: Missouri Supreme Court

8 S.W. 549

95 Mo. 573

SCHAD v. SHARP.

Supreme Court of Missouri.

June 4, 1888.

1. COURTS — JURISDICTION — RECORD IN EJECTMENT — PRESUMPTION.

In ejectment it is immaterial that the record does not affirmatively show the land in question to have been in the county wherein the action was brought; the court, having general jurisdiction, will be presumed to have rightfully exercised it.

2. EVIDENCE — AMENDED PLEADINGS — RIGHT TO READ ORIGINAL PLEADINGS.

Where an action is tried upon amended pleadings, a party may read in evidence the original pleadings of his adversary.

3. LIMITATION OF ACTIONS — ADVERSE POSSESSION — MUTUAL MISTAKE AS TO BOUNDARIES.

Where two adjoining proprietors are divided by a fence, which they erroneously suppose to be the true line, in the absence of any agreement to the contrary, they are not bound by the supposed line, but must conform to the true line, though the land in question has been in actual possession, under such mistake, for more than 10 years.

4. BOUNDARIES — AGREEMENT AS TO — EVIDENCE.

In such case, mere occupation for 10 years by said proprietors, under such mistake, is not sufficient evidence from which to infer an agreement to hold to said fence regardless of the true line.

5. APPEAL — REVIEW — WEIGHT OF EVIDENCE.

In actions at law, the supreme court, on appeal, will not pass upon the weight of the evidence.

Appeal from circuit court, Morgan county; E. L. EDWARDS, Judge.

Action of ejectment by John Shad against Preston Sharp, for land in Morgan county. Judgment for plaintiff, and defendant appeals.

A. W. Anthony, for appellant. Druffen & Williams, for respondent.

BRACE, J.

This is an action on ejectment to recover possession of a strip of land containing something less than one acre, the ownership of which depends on the location of the line between the N. W. ¼ and the S. W. ¼ of section 26, town 43, range 16, in Morgan county The petition is in the usual form, the answer a general denial, with a plea of the statute of limitations. The adverse possession was denied in the reply. The case was tried before a jury, and the plaintiff obtained judgment, from which defendant appeals, and urges a reversal upon the grounds which will be noticed in the course of the opinion.

1. The jurisdiction of the circuit court of Morgan county to try the case is for the first time questioned in this court, on the ground that the evidence does not show affirmatively that the land sued for is in Morgan county. Conceding this to be so, it does not follow that the land was not in Morgan county, and that the circuit court of that county did not have jurisdiction. Nothing appearing in the record to show that the land was not in that county, and the circuit court being a court of general jurisdiction, it will be presumed to have exercised its jurisdiction rightfully, and "nothing shall be intended to be out of the jurisdiction of a superior court but which specially appears to be so." Gates v. Tusten, 89 Mo. 13; Huxley v. Harrold, 62 Mo. 516. Enough, however, appears in this record, on the pleadings and evidence, apart from this presumption, to show that this land was in Morgan county.

2. The case was tried on an amended petition and answer, and on the trial the plaintiff was permitted to read in evidence the former pleadings of the defendant. There was no error in this. Anderson v. McPike, 86 Mo. 293; Dowzelot v. Rawlings, 58 Mo. 75.

3. In this case the plaintiff and defendant are adjoining proprietors, and purchasers from the same grantor; the plaintiff's deed being dated in June, and the defendant's in December, 1868. At the time the purchases were made there was a fence on a line between the two tracts. The common grantor, Parks, introduced as a witness by the defendant, testified: "When I sold to Schad, the land in the prairie was fenced on the line of German's survey. He was county surveyor, and made the survey for us in 1854. I told Schad the fence was on the line, or close to it. * * * I made the same statement to Sharp when I sold to him." The defendant did not testify, but it was shown by the evidence that, from the time he went into possession of his land, he occupied and cultivated the same up to this line, until 1880 or 1881, when another survey was made at the instance of Schad, by a surveyor by the name of Miller. The line of this survey ran south of the line of German's survey. Plaintiff claimed that this latter was the true line, and the strip between these two lines is the land in controversy; and on the trial he testified: "Before Miller made his survey I did not claim the land south of the hedge. Mr. German run the line, and I had to take it. * * * I did not claim beyond this line until after Miller's survey. * * * I did not know no line. I could not tell where the line was. I did not claim beyond my...