Vincent v. Means

• Decision Date: 10 December 1907
• Citation: 207 Mo. 709,106 S.W. 8
• Parties: VINCENT v. MEANS et al.
• Court: Missouri Supreme Court

106 S.W. 8

207 Mo. 709

VINCENT v. MEANS et al.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. APPEAL — FINDINGS — CONCLUSIVENESS.

A finding of the trial court trying a case without a jury has the effect of a verdict and will not be interfered with unless there is an absence of substantial evidence to sustain it.

2. SAME — LAW OF THE CASE.

Where a declaration of law was simply copied in the record, but no point was made thereon or any mention of it in the opinion, the declaration was not approved and was not the law of the case on a subsequent trial.

3. ACKNOWLEDGMENT — DEEDS — DEFECTIVE EXECUTION — EFFECT.

Where there was substantial evidence that one conveyed land to a grantee with intent to vest title in him, the conveyances, though not legally acknowledged, passed title to him.

4. LANDLORD AND TENANT — DISPUTING TITLE OF LANDLORD.

Where a grantee in a defectively acknowledged deed claimed to own the land described therein and exercised acts of ownership thereof, possession by persons holding under him was not possession under the grantor within the rule that a tenant cannot dispute the title of his landlord unless he first surrenders possession.

5. EJECTMENT — DEFENSES — EVIDENCE — SUFFICIENCY.

In ejectment, defendant claimed under a grantee in a deed from plaintiff, and sought to show the existence of the deed by the admissions of plaintiff and the grantee and the latter's exercise of acts of ownership for many years, during which time a part of the land was condemned for a railroad right of way as the land of the grantee who received the compensation therefor. Held, to show the existence of the deed.

6. EVIDENCE — PAROL EVIDENCE — VARYING WRITTEN INSTRUMENTS.

Parol evidence of the existence of a deed by proof of its recognition by the grantor and grantee therein is competent and does not alter or contradict the deed.

7. APPEAL — HARMLESS ERROR — ERRORS IN DECLARATION OF LAW.

Where, in ejectment, a declaration of law was based on the theory that plaintiff's cause of action was barred and that plaintiff's grantee, under whom defendant claimed, was the owner of the land when a third person inclosed it for the grantee, the error in a declaration of law arising from a mistake as to the time the third person inclosed the land was not prejudicial to plaintiff.

Appeal from Circuit Court, Putnam County; Geo. W. Wanamaker, Judge.

Ejectment by Miner C. Vincent against John R. Means and another. From a judgment for defendants, plaintiff appeals. Affirmed.

See 82 S. W. 96.

John C. McKinley and Higbee & Mills, for appellant. N. A. Franklin, D. M. Wilson, and A. W. Mullins, for respondents.

BURGESS, J.

This cause was before this court on a former appeal by the defendants, and was then reversed and remanded for further trial. 184 Mo. 327, 82 S. W. 96. The last trial resulted in a judgment for defendants, from which judgment, after an unavailing motion for a new trial, plaintiff appeals, and assigns error.

The action is ejectment for a tract of land in Putnam county. The case was tried by the court without the aid of a jury. In the former opinion of this court the facts in the case were fully stated, but upon the last trial additional facts were shown by defendants which confirmed their position on the former appeal. As the cause was tried by the court, a jury being waived, the same presumption is to be indulged in favor of the correctness of the finding as the verdict of a jury, and it will not be interfered with by the Supreme Court unless there be an absence of substantial evidence to sustain such finding. Irwin v. Woodmansee, 104 Mo. 403, 16 S. W. 486; Godman v. Simmons, 113 Mo. 122, 20 S. W. 972; Gould et al. v. Smith, 48 Mo. 43; Gaines v. Fender, 82 Mo. 497.

Plaintiff contends that the court erred in refusing to give declarations of law No. 3, as asked by him, and in giving it in a modified form. As asked, it reads: "If the court, sitting as a jury, find from the evidence that plaintiff entered the land in question and made arrangements with his brother, A. B. Vincent, to look after the land and pay the taxes thereon, and his brother agreed to do so, and plaintiff went away and has resided abroad, relying upon his brother to pay the taxes on said land, and about the year 1885 said A. B. Vincent leased the land in his own name to witness Marshall, without disclosing that he was acting as agent for plaintiff, and witness Marshall fenced the land and paid taxes thereon under the terms of his lease for the use of the pasture, and remained in possession of said land under said agreement until March, 1891, when said A. B. Vincent sold and conveyed said land to defendant Means, then you are instructed the relation of said A. B. Vincent to plaintiff was that of agent, and the possession of witness Marshall was not under claim of ownership, either in himself or of A. B. Vincent, but was consistent with and not in opposition to nor adverse to plaintiff's title and ownership; in other words, the law presumes that Marshall's possession up to the time A. B. Vincent conveyed said land to Means in March, 1891, was in law and in fact plaintiff's possession, and this possession could not be changed to an adverse possession by any intent on the part of A. B....