Ware v. Cheek

• Citation: 201 S.W. 847
• Decision Date: 04 March 1918
• Docket Number: No. 19134.,19134.
• Parties: WARE v. CHEEK.
• Court: Missouri Supreme Court

201 S.W. 847

WARE v. CHEEK.

No. 19134.

Supreme Court of Missouri, Division No. 1.

March 4, 1918.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

Ejectment by A. D. Ware against S. F. Cheek. Judgment for plaintiff, and defendant appeals. Affirmed.

Burns, Burns & Burns, of Brookfield, for appellant. Bailey & Hart, of Brookefield, for respondent.

GRAVES, J.

This is an ordinary action in ejectment, and the petition is in conventional form. Answer is (1) a general denial, (2) "open, notorious, adverse, hostile, continuous and uninterrupted possession of the land described in plaintiff's petition, for more than 30 years before the filing of this suit." Reply general denial of new matter in the answer. Upon a trial without the intervention of a jury, the finding and judgment was for the plaintiff, and defendant has appealed.

The subject-matter of the action is a strip of land (5½ feet wide at one end and 4 feet wide at the other end) on the south side of outlot 42 in J. B. Helm's subdivision or addition to the city of Brookfield, Mo. At the trial it was agreed that Edward W. Williams was the common source of title. From the evidence it appears that Edward W. Williams and his wife, Almira L. Williams, made a joint will, by the terms of which all their property went to the survivor for life, and upon the death of the survivor to Walter Brownlee, trustee, for Sarah B. Johnson, a niece of the testators. The trustee had power of sale. To make out his case the plaintiff put in evidence the will above named and the probate thereof. It was admitted that Williams and his wife were both dead. There was then introduced in evidence a quit-claim deed of date April 29, 1915, from Walter Brownlee, trustee, to plaintiff conveying the land in dispute; then the plat of the Helm's addition. This was followed by the testimony of a surveyor to the effect that he had surveyed said outlot 42 of Helm's addition, and that the defendant had inclosed and in his possession a strip of ground off of the south side of said outlot 42, 5½ feet wide at the east end and 4 feet wide at the west end, being the strip of ground in dispute in this case. At this the plaintiff rested with the agreement that the damages, if any, should be 1 cent, and the monthly rents and profits, if any, should be 25 cents.

The defendant offered in evidence a deed from A. L. Williams and E. W. Williams, her husband, to William H. Stufflebean, conveying all of the 140 feet off of the north side of outlot 43 in Helm's addition or subdivision, and followed this with a deed from said Stufflebean and wife to defendant, conveying the same land. At this point it should be borne in mind that outlot 42 adjoins outlot 43 on the north.

The oral evidence for the defendant is thus abstracted in the record:

"Tim Sullivan testified: That he helped build the fence purporting to be between the properties of the plaintiff and defendant in the spring of 1914; that at the time some of the posts of the old fence were standing; that said old posts were removed and the posts of the new or present fence put down in the same holes; that one panel and two posts of the old fence were left intact and formed the first panel of the new fence at the east end of the fence; and that the fence on the ground here in controversy is on the same line as the old fence. "Witness Charles Lewis testified for the defendant: That he had known the fence line purporting to be between outlot 42 and outlot 43 on the ground here in controversy for 25 years, and that during all that time the fence had been on the same line as the present fence, separating or purporting to separate the properties now owned by plaintiff and defendant; that during some of that time the fence was rotted down in places, but that all the time there were some posts and pieces of posts on that fence line, and that the fence was on the same line for the laid period of 25 years, and that the posts of the present fence at the east end was a hedge post, and had been used in the present fence and the old fence for 25 years.

"Witness Al Riley testified for defendant: That he had known the fence line in controversy for 25 years, and that the present fence was on the same line as the old fence; that the panel at the east end of the present fence was a panel of the old fence; that two hedge posts at the east end are the same identical posts that have been there for about 25 years. "Witnesses John Gooch, John King, W. P. Cheek, and J. E. Cornish, testified for defendant: That they have known the property in question for periods varying from 12 to 17 years, and that the fence on the property here in controversy was on the same line that it is now, during all of their acquaintance with it.

"S. F. Cheek on his own behalf testified: That he had known the fence, on the property in controversy, for 17 years; that he hauled repairs for the old fence 16 years before the day of trial; that the fence had been on the same line as it now is, to his knowledge, for 17 years; that one of the panels of the old fence, at the east end, is still standing and is a part of the new fence, built in 1914."

The defendant also put in evidence a different line of paper title for plaintiff, but stopped short of getting down to plaintiff. In rebuttal plaintiff put in the subsequent conveyances which carried this paper title from Thomas D. Price through Edward W. Williams to the plaintiff by divers mesne conveyances. The materiality or immateriality of this evidence wil be noted in the course of the opinion, if necessary.

Defendant offered to prove by William H. Stufflebean that at the date he purchased the 140 feet on the north side of outlot 43 from A. L. Williams in October, 1910, the husband, the said E. W. Williams, in pointing out the land being sold said that it extended north to the fence. This evidence was excluded and a point is made thereon. The accompanying plat shows the situation. The strip in dispute appears to be a part of outlot 42, and the trial seems to have so proceeded. This outlines the facts.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

I. The first material point in this case is the rejection of the testimony of William H. Stufflebean. The case is one purely at law, and is here without any declarations of law from the court nisi. It is quite clear that the court could have well found that the strip of land in dispute was a part of outlot 42, and that the paper title thereto was in the plaintiff. In fact this question is not seriously controverted. On the one remaining question, i. e., adverse possession, the competency and materiality of this evidence hinges. The most that the admitted oral evidence shows is that the present fence is at the same place whereat there had been a fence for 25 years. When the abstract of this evidence (quoted in full from the record) is read, it will be seen that there is no evidence that defendant's grantors claimed the land to the fence. The only defense is the adverse possession for more than 10 years. From the record title to outlot 43 was in Almira L. Williams, and not Edward W. Williams. She conveyed this outlot 43 to Stufflebean in October, 1910, and this suit was filed in May, 1915, less than 5 years after Stufflebean's possession began. Now if it be conceded that this testimony, if admitted, would tend to strengthen Stufflebean's claim of adverse possession, yet the claim of adverse possession must be shown prior to the advent of Stufflebean. The evidence shows a fence, but it does not show that Stufflebean's predecessors...