Wilkerson v. Eilers

Citation114 Mo. 245,21 S.W. 514
PartiesWILKERSON v. EILERS.
Decision Date14 February 1893
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis circuit court; James E. Withrow, Judge.

Ejectment by Edward Wilkerson against Henry Eilers. Plaintiff obtained judgment. Defendant appeals. Reversed.

F. & Ed. L. Gottschalk, for appellant. Campbell & Ryan, for respondent.

BURGESS, J.

An action of ejectment for a small parcel of land in the city of St. Louis, being in the western part of block No. 92 of the St. Louis commons, containing about 1.03 acres, and fronting about 4.57 chains on the east line of the Stringtown road, now Virginia avenue, by a depth east, on its north line, of about 2.06 chains, and on its south line of about 3.59 chains. The suit was commenced on the 22d day of May, 1890. The answer is a general denial. The plaintiff is the husband of Virginia Wilkerson. The evidence tended to show title from the government to Bridget Ivory, who, on the 17th day of November, 1874, executed a deed of trust on the premises to Alfred Carr, as trustee for the use and benefit of Virginia Wilkerson, to secure a loan of a certain amount of money. The deed of trust provided that the land should be advertised for 30 days before the day of sale in some newspaper in the city of St. Louis. Plaintiff read in evidence, over the objections of defendant, a trustee's deed from Alfred Carr to Virginia Wilkerson, executed on the 17th day of December, 1878, and made under a sale under said deed of trust by Carr as trustee. It appears that the notice of the trustee's sale was advertised in the St. Louis Daily Journal on November 14th and 15th, and in the St. Louis Times-Journal 29 times in addition thereto, making altogether 31 times. The Times and Journal were consolidated about the middle of November, 1878, and the next issue thereafter was called the Times-Journal, and there was no lapse between the ceasing of the one and the issuing of the other. The evidence also tended to show that the defendant had been in the open and adverse possession of the land for more than 10 years before the commencement of this suit. There was a verdict and judgment for plaintiff for possession, and defendant brings the case to this court by appeal.

Defendant's first contention is that the court improperly admitted in evidence the trustee's deed to Virginia Wilkerson, because it was invalid, and of no effect, for the reason that the deed of trust under which the sale was made by the trustee, Carr, provided that the notice of the sale should be published in some newspaper for 30 days before the day of sale, while in fact the notice was published in two different newspapers, — 2 days in one, and only 29 in the other, — and was not published for the requisite length of time in either paper. The evidence clearly shows that the publication was but the continuation of the one notice, and, although the name of the paper in which the notice was first inserted was changed, by reason of its consolidation with another, we can but conclude that the publication of the notice was in strict compliance with the provisions of the deed of trust. As was said by Judge Redfield in the case of Isaacs v. Shattuck, 12 Vt. 668, where the statute required the publication of an advertisement for the sale for taxes to be published in the Vermont Republican, and it was published in the Vermont Republican and the American Yeoman, that, the name of the paper being entirely changed, if it could be made to appear that it was the same paper required by the statute, the advertisement would be legal. And in the case of Soule v. Chase, 1 Rob. (N. Y.) 223, where the notice of sale was required to be published in the New York Day Book, and the notice was published in the Evening Day Book, it was held to be a compliance with the order. To the same effect is the case of Reimer v. Newel, 47 Minn. 237, 49 N. W. Rep. 865. We must therefore rule this point against the appellant.

The court permitted plaintiff's counsel, on the cross-examination of several of defendant's witnesses, to call their attention to statements made by them in...

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66 cases
  • Markey v. Louisiana & M. R. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 23 November 1904
    ......v. Mackler, 88 Mo. App. 186. .         (2) The defendant is not liable under the allegations of the petition. Wilkerson v. Eilers, 114 Mo. 245, 252, 21 S. W. 514; Rev. St. 1899, § 1060; East Line & Red River R. Co. v. Culberson, 72 Tex. 375, 10 S. W. 706, 3 L. R. A. ......
  • Tillman v. Hutcherson, 37254.
    • United States
    • United States State Supreme Court of Missouri
    • 25 September 1941
    ......The claim of ownership may be only "pretended" or "asserted." [Smith v. McCorkle, 105 Mo. 135, 141, 16 S.W. 602, 603; Wilkerson v. Eilers, 114 Mo. 245, 21 S.W. 514.] Neither was it necessary that respondent's claim be "independent of the fence." Color of title is not necessary ......
  • Branner v. Klaber
    • United States
    • United States State Supreme Court of Missouri
    • 12 April 1932
    ......Scott and family are not in possession under color of title. Booth v. Scott, 276 Mo. 1, 205 S.W. 643; Gaines v. Saunders, 87 Mo. 563; Wilkerson v. Eilers, 114 Mo. 245, 21 S.W. 515; Cullen v. Johnson (Mo.), 29 S.W. (2d) 48; Perkins Land & Lbr. Co. v. Irvin, 200 Mo. 491. (3) The rights of Annie ......
  • State v. Fairlamb
    • United States
    • United States State Supreme Court of Missouri
    • 13 March 1894
    ...... Pruitt v. Martin, 59 Mo. 325; 1 Greenleaf on. Evidence [5 Ed.], sec. 463; Norris to use v. Brunswick, 73 Mo. 258; Wilkerson v. Eilers, 114. Mo. 252. (8) The verdict should not be permitted to stand,. because of improper remarks of the attorney for the state in. his ......
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