Turner v. Dixon

• Decision Date: 06 June 1899
• Citation: 51 S.W. 725,150 Mo. 416
• Parties: Turner et al. v. Dixon, Appellant
• Court: Missouri Supreme Court

51 S.W. 725

150 Mo. 416

Turner et al. v. Dixon, Appellant

Supreme Court of Missouri, Second Division

June 6, 1899

Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.

Affirmed.

Lincoln & Lydy for appellant.

(1) The legal title to this one-half acre passed to the purchaser at the partition sale. Plaintiffs show no legal title in them and can not maintain ejectment even if they had an equitable title. Ford v. French, 72 Mo. 250; Norfleet v Russell, 64 Mo. 170; Dunlap v. Henry, 76 Mo 106; Hunt v. Selleck, 118 Mo. 558. (2) Defendant's objection to the introduction of any evidence should have been sustained. The petition does not contain a sufficient description of any land. Western v Flanagan, 120 Mo. 61. It is not alleged that the half acre is in form of a square, nor is its length or breadth or location in the quarter section stated. The description is too vague, indefinite and uncertain. Livingston Co. v. Morris, 71 Mo. 603. (3) The evidence offered contradicting the decree in partition, and showing the location of the burial ground as being in the northwest quarter and not in the southwest quarter of the section was inadmissible. The description in the decree is certain and intelligible, and if there was any mistake in it, a court of equity might correct it. It is not permissible to inject a new description. King v. Fink, 51 Mo. 209; Ford v. Unity Church, 120 Mo. 507. (4) And this evidence was certainly inadmissible as against defendant, who was a purchaser for value without notice of such mistake and without notice of the existence of this burial ground. It was error to refuse defendant's instruction as to the question of notice, and the instruction given by the court of his own motion is erroneous in ignoring the question of notice. Martin v. Nixon, 92 Mo. 26; Hope v. Blair, 105 Mo. 85, 94; Seiberling v. Tipton, 113 Mo. 373. (5) If the Dixons had notice of the existence of this alleged burial ground, the evidence shows their grantors, Ish, Regan and Wightman were each without such notice and this would give a good title to the defendant. It was error to refuse the instruction which presents this question to the jury. Campbell v. Gas Co., 84 Mo. 352; Funkhouser v. Lay, 78 Mo. 458. (6) The evidence shows that no specific one-half acre, alleged to be a burial ground, has ever been legally dedicated as such. Instruction numbered 4 should have been given. Even this supposed burial ground has been practically abandoned. Campbell v. Kansas City, 102 Mo. 326.

C. W. Hamlin for respondents.

(1) The petition in the case at bar describes the land in controversy "as one-half acre out of the northeast quarter of the northwest quarter, section 8, township 29, range 21; the same being the family graveyard of John L. McCracken." There was no other burial ground or graveyard on the northeast quarter of the northwest quarter, section 8, township 29, range 21, or in the whole surrounding country, known as the "John L. McCracken graveyard." A description sufficient to identify the property in controversy, is all that is required. Webster v. Blount, 39 Mo. 500; McPike v. Allman, 53 Mo. 551; Hammond v. Johnston, 93 Mo. 217. (2) In this case the decree in partition shows that the "John L. McCracken graveyard" was reserved and excepted from the decree of sale and partition, and was reserved at said sale, and the evidence abundantly shows that the graveyard has been located at the place where it is now, at least since 1855 and all of the old citizens knew its location well and there is no other graveyard in all this section of country known as the "McCracken graveyard." Distances and description by numbers, metes and bounds will yield to monument. Smith v. Catlin Land Co., 117 Mo. 436. (3) The John L. McCracken graveyard was never sold at partition sale and Mrs. Stahl did not get a title to it, nor could anyone except by limitation, and that question was submitted to the jury on proper instructions and their finding being adverse to respondent, the court will not disturb it. (4) This court can not consider the sufficiency of the petition in this case inasmuch as it is not set out in full in appellant's abstract. Garrett v. Kansas City Coal Min. Co., 111 Mo. 279; Brown v. Pope, 28 Mo.App. 379. (5) The appellant can not have the action of the trial court, in giving and refusing instruction, reviewed here, since he has not set out the evidence in full, upon which the court's action was based. Ewart v. Tootle, 50 Mo.App. 322; Garrett v. Kansas City Coal Min. Co., 111 Mo. 279; Johnson v. Carrington, 120 Mo. 315; Aultman Taylor Co. v. Smith, 52 Mo.App. 351; Lindsey v. Dixon, 52 Mo.App. 291. A general objection to the giving or refusing instructions will be disregarded. McKensie v. Railroad, 24 Mo.App. 396.

BURGESS, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

BURGESS, J.

Ejectment for the possession of one-half acre of ground out of the northeast quarter of the northwest quarter of section eight, township twenty-nine of range twenty-one, being the family graveyard of one John L. McCracken in Greene county. The petition is in the usual form and the answer a general denial. The ouster is laid August 22, 1896. The case was tried by the court and jury. The trial resulted in a verdict and judgment for plaintiffs for possession of the ground. After unsuccessful motion for a new trial defendant appeals.

John L. McCracken deceased is the common source of title. Plaintiffs claim title as his heirs; the defendant, through mesne conveyances from the purchaser of the ground of which that in question is a part at a partition sale of the lands of said John L. McCracken among his heirs made in pursuance of a judgment and decree of court rendered in a suit for partition to which plaintiffs were parties. The east half of the northwest quarter of said section eight was embraced in the judgment and decree in that suit and was ordered sold, except "one-half acre of the east half of southwest quarter of section eight, township twenty-nine, range twenty-one, so laid out as to include the family graveyard of said John L. McCracken, deceased." At the partition sale Mary T. Stahl became the purchaser of the east half of the northwest quarter of said section eight and received a sheriff's deed therefor dated November 15, 1880. Defendant claims title under Mary T. Stahl derived from her through J. C. B. Ish, Samuel H. Regan, John Wightman and William Dixon, but none of the grantees through whom he claims title were innocent purchasers, nor was he, as the graveyard which embraced the land in question had been known and used as such for over thirty years. He also claimed title by adverse possession for more than ten years.

The following instructions were asked by defendant and refused:

"1. The court declares that under the pleadings and evidence the plaintiffs can not recover.

"2. The court declares that the decree in partition wherein James R. Turner et al. were plaintiffs and William S. Rigg et al were defendants, read in evidence, locates the burial ground of John L. McCracken, deceased, on the southwest quarter of section eight, township twenty-nine, range twenty-one, Greene county, Missouri; and if the jury finds from the evidence that said burial ground was by mistake described as being on said land when in fact it was located on the northeast quarter of the northwest quarter of said section, then plaintiffs can not recover, unless they have shown by a preponderance of the evidence that W. H. Dixon, at the time he purchased the land in controversy, had notice of said mistake or the existence of said burial ground in said mentioned forty, and if the jury finds that W. H. Dixon had such notice, but that John Wightman, his grantor, had no notice of said mistake or the existence of said burial ground on said last described forty, then the finding must be for defendant.

"3. The court declares that if the evidence shows that Ish, Regan, Wightman and Dixon successively have been in adverse, actual, open, continuous and uninterrupted possession of the land in controversy for ten years next before the commencement of this suit, then plaintiffs can not recover.

"4. The court declares the evidence insufficient to establish the dedication of the ground in controversy as the private burial ground of John L. McCracken, deceased.

"5. If the jury finds from the evidence that the plaintiffs in this action were also parties to the partition suit for the partition of the John L. McCracken lands and that the east half of northwest quarter of section eight, township twenty-nine, range twenty-one, Greene county Missouri, was sold in said cause and a sheriff's deed in partition executed conveying said land without excepting the alleged burial ground in question, and the purchaser paid the sheriff his bid for said land, and ...