Swisher v. Sensenderfer

• Decision Date: 31 October 1884
• Citation: 84 Mo. 104
• Parties: SWISHER v. SENSENDERFER, Appellant.
• Court: Missouri Supreme Court

84 Mo. 104

SWISHER

v.SENSENDERFER, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Pettis Circuit Court.--HON. JOHN P. STROTHER, Judge.

AFFIRMED.

E. J. Smith and W. S. Shirk for appellant.

G. P. B. Jackson and John Montgomery for respondent.

EWING, C.

Sensenderfer sued Swisher in the circnit court of Pettis county, in ejectment to recover the west half of the northeast quarter of section thirty-two, township forty-four, range twenty-three. The case was removed to the United States circuit court. The defendant in that case, Swisher, had only an equitable defence; and according to the practice in the federal courts, could not set up such claim to the action of ejectment. But in compliance with the practice there, he filed his bill in equity to assert his equitable title and asked a stay of proceedings in the ejectment suit until the equity case should be disposed of.

The averments of the bill, in substance, were, “that one Lampton had entered the land in 1856, and received a certificate from the land office, evidencing that fact; that, through the mistakes of the local officers, the matter was improperly certified to the general land office; that Lampton immediately took possession of the land and fenced part of it; that he sold it to one Mansur, who took possession and enclosed the whole of it, and in 1865, sold it to respondent, who has ever since been in actual possession; that there had been a continued actual possesion ever since Lampton's entry, and that taxes had been regularly paid all the time; that appellant, with full notice of these facts and of respondent's rights, and for the purpose of defrauding respondent, had procured a patent to said land.” Then, by stipulation, the case was returned to Pettis county, when the defendant, Sensenderfer, answered and the case was tried, and judgment rendered for Swisher and the legal title decreed in him from which appellant appealed to this court.

The evidence in the case was voluminous, documentary, and parol, and we think very satisfactorily establishes the fact that Lampton entered the land in controversy in 1856, took possession, and that he and his grantees have been in continuous possession under claim of title eversince. The testimony of the witnesses, Means and Lampton, clearly shows that Lampton went to the land office at Warsaw, paid the gold to Marvin, the register, for a land warrant number 26,384, which was located on the west half of the northeast quarter of section...