Sloan v. Chitwood

• Decision Date: 09 March 1909
• Citation: 217 Mo. 462,116 S.W. 1086
• Parties: SLOAN v. CHITWOOD.
• Court: Missouri Supreme Court

116 S.W. 1086

217 Mo. 462

SLOAN v. CHITWOOD.

Supreme Court of Missouri, Division No. 2.

March 9, 1909.

1. EJECTMENT (§ 90)—ADMISSIBILITY OF EVIDENCE — DEED IN PLAINTIFF'S CHAIN OF TITLE.

In ejectment for a strip of land in the east half of lots 5 and 6 in a quarter section, to admit in plaintiff's favor a deed from the original patentee of lot 6 was not error, though there was no deed to the latter from the party who entered the strip in lot 5.

2. EJECTMENT (§ 15)—TITLE TO SUPPORT ACTION— COMMON SOURCE.

While plaintiff must recover on the strength of his own title, and not on the weakness of defendant's, when both parties claim under a common source, title back of the common grantor need not be shown.

3. APPEAL AND ERROR (§ 1011)—REVIEW— QUESTIONS OF FACT.

Where the evidence conflicts on a question of fact as to a boundary, and there is evidence tending to support the claim of the successful party, the judgment will not be disturbed, especially where only two-fifths of an acre is involved.

Appeal from Circuit Court, Reynolds County.

Ejectment by Margaret H. Sloan against Seth Chitwood. From a judgment for plaintiff, defendant appeals. Affirmed.

J. H. Chitwood, S. L. Clark, and G. H. Yount, for appellant. G. D. Sloan and R. I. January, for respondent.

GANTT, P. J.

This is an action in ejectment in statutory form for a strip of land, containing in all two-fifths of an acre, in the east half of lots 5 and 6 in the N. E. ¼ of section 6, township 29, range 1 W., in Reynolds county, Mo. This litigation grows out of the dispute as to a boundary line between the respective farms of plaintiff and defendant. Ouster was laid as of March 20, 1905. The answer admitted possession, and denied all the other allegations, and pleaded the 10-year statute of limitations. The strip in lot 5 of northeast quarter of said section, was originally entered by John Buford, and that in lot 6 was entered by Pate Buford. Plaintiff deraigned her title through Pate Buford, and mesne conveyances down to George Sloan and Alexander Sloan and William P. Moyer, and then by partition deed between these last-named parties, by which the tract on the east side of the dividing line between plaintiff and defendant was conveyed to Alexander Sloan, December 16, 1873, which was duly recorded. Alexander Sloan and wife, by deed February 11, 1879, conveyed said tract to Damaris Leigh. Leigh died in 1895, leaving plaintiff as sole heir at law. Defendant owns the land on the west of this tract, being a part of the land conveyed to William R. Moyer in the partition deed. Moyer conveyed to Ezell in 1872. Ezell conveyed to Gentry Moyer, and Moyer to Wadlow, and Wadlow to Rumberg. Rumberg conveyed the land to Cromwell, and Cromwell to defendant, Chitwood. The evidence tended to prove that Ezell and Alexander Sloan built a partition fence between said tracts about 31 or 32 years before the trial. That fence was washed away, and other fences were from time to time erected, which met the same fate. The location of the old fence was identified by the various witnesses, by line trees, and by what the witnesses called a "turn row." James Faulkenberry, the county surveyor of Reynolds county, surveyed the lands in March, 1905, from the description that was used by John Buford. Hugh Chitwood, and John B. Wood, commissioners, about 30 years prior to the time of his survey. The surveyor did not have the official field notes of the survey of the line between the lands of plaintiff and defendant. The evidence...