Wilkinson v. Lieberman, 29210.
| Decision Date | 31 March 1931 |
| Docket Number | No. 29210.,29210. |
| Parties | JOSHUA WILKINSON ET UX. v. PAUL LIEBERMAN ET UX., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Platte Circuit Court. — Hon. Guy B. Park, Judge.
AFFIRMED.
Andrew D. Gresham and Walter J. Gresham for appellants.
(1) The court erred in holding that there was no evidence to sustain the defense of estoppel and in granting a new trial to plaintiffs. Plaintiffs did not object or except to the instruction submitting the issue of estoppel and cannot now say that it is not the law or that there was no evidence to sustain it. 3 C.J. 922, 919; Building Co. v. Hopkins, 204 Mo. 643; State v. Delclore, 199 Mo. 228; McCormick Harv. Co. v. Hill, 104 Mo. App. 544. (2) Under the law and the evidence appellants were entitled to the verdict which the jury returned in favor of them, the respondents being estopped to claim the land in dispute. 9 C.J. 241; 21 C.J. 1160; Davis v. Lea, 293 Mo. 660; Field v. Bogie, 72 Mo. App. 181; Lindell v. McLaughlin, 30 Mo. 28; Dolde v. Vodlicka, 49 Mo. 98; Shea v. Shea, 154 Mo. 599; Diers v. Peterson, 290 Mo. 249; Olden v. Hendrick, 100 Mo. 533. (3) Plaintiffs were not entitled to a verdict in any event, and a verdict for plaintiffs would have been void because the petition describes no definite tract of land. Livingston Co. v. Morris, 71 Mo. 603; Bricken v. Cross, 140 Mo. 166; Collins v. Andriano, 264 Mo. 475; Burns v. Liberty, 131 Mo. 373; McDermott v. Doyle, 11 Mo. 443; Roberts v. Tel. Co., 166 Mo. 370.
James H. Hull for respondents.
(1) The record discloses that the ground upon which the court granted plaintiff a new trial was that there is no evidence to support the defense of estoppel; in other words, the verdict is against the evidence and against the weight of the evidence. The burden is upon the appellants to show that the court committed error in granting respondents a new trial and that the ground assigned for that order is untenable. Itner v. Hughes, 133 Mo. 679; Manthey v. Contracting Co., 311 Mo. 156; Stoner v. Royar, 200 Mo. 444; Kersten v. Hines, 283 Mo. 623; State ex rel. v. Thomas, 245 Mo. 73; Yuronis v. Wells, 17 S.W. (2d) 518. The trial court has the right to set aside a verdict for any other reason not contained in the motion and it is still its duty to specify that reason upon the record, and if the court's action in granting a new trial can be sustained upon any ground shown by the record, and proceedings in the case, the judgment must be affirmed. Hewitt v. Steele, 118 Mo. 463; Bank v. Wood, 124 Mo. 72; Green v. Term. Railroad Assn., 211 Mo. 18; Bales v. Perry, 51 Mo. 449. (2) The plea of estoppel set up in the answer was wholly insufficient as a defense to plaintiffs' cause of action, and the evidence of defendants was also insufficient to sustain the plea of estoppel and fell far short of the allegations in the answer, and the trial court was amply justified in sustaining plaintiffs' motion for new trial on that ground. Dameron v. Jamison, 143 Mo. 483; Olden v. Hendrick, 100 Mo. 533; Wood v. Oil & Refining Co., 274 S.W. 900; 21 C.J. 1103; Blodgett v. Perry, 97 Mo. 263; Bales v. Perry, 51 Mo. 449; State ex rel. Kaufman v. Sitlington, 51 Mo. App. 258; Interurban Ry. Co. v. Light & Devel. Co., 277 Mo. 579. (a) When facts are known to both parties or they have equal means of knowledge, there is no estoppel in favor of either. Wood v. Oil & Refining Co., 274 S.W. 894; 21 C.J. 1131; Blodgett v. Perry, 97 Mo. 263; Bader v. Mill & Lumber Co., 134 Mo. App. 145; Grafeman Dairy Co. v. Northwestern Bank, 290 Mo. 336; Mueller v. Kaessmann, 84 Mo. 329. (b) The granting of a new trial on the ground that the verdict is against the weight of the evidence, rests peculiarly with the trial judge, and his discretion in this particular will rarely be interfered with unless it plainly appears that injustice has been unsoundly and arbitrarily exercised. Iron Mountain Bank v. Armstrong, 92 Mo. 280; Bank v. Wood, 124 Mo. 72; Thompson v. Street Ry. Co., 140 Mo. 125, 145; Parker v. Cassingham, 130 Mo. 348; Loftus v. Street Ry. Co., 220 Mo. 470; Rodan v. Transit Co., 207 Mo. 392; Seeger Co. v. Silver Co., 193 Mo. 407; Lorenzen v. Railroad. 249 Mo. 187. (c) Plaintiffs' peremptory instruction should have been given for the very same reason that the court sustained plaintiffs' motion for new trial, that there was no evidence to support the defense of estoppel, or in other words on the second ground of plaintiffs' motion for new trial, that is, the verdict is against the weight of the evidence. Wilkerson v. Eilers, 114 Mo. 252; Mather v. Walsh, 107 Mo. 121.
The plaintiffs' instruction was in proper form and should have been given and the court committed error in refusing to give the same. Clark v. McAtee, 227 Mo. 178.
Plaintiffs, husband and wife, sue in ejectment for possession of a strip of land described as being in Platte County, Missouri.
The answer of defendants, who are husband and wife, is a general denial; adverse possession "of the land claimed by plaintiffs for more than thirty years;" an agreed line and estoppel. By way of estoppel, defendants allege: "that defendants, being in possession of said land under claim of title, which plaintiffs well knew, proceeded to improve said land and to build thereon permanent improvements; that plaintiffs knew that all of this was being done, and never at any time prior to July, 1927, raised any question as to defendants' ownership of said land or right to possession thereto, but remained silent and allowed defendants to expend much time and money in making improvements and crecting buildings thereon."
A trial was had before a jury. The court refused defendants' instructions on adverse possession and agreed line, and of its own motion gave an instruction submitting the question of estoppel. The instruction advised the jury that record title to the land in controversy was in plaintiffs and that the defendants had no record title thereto and that the finding should be for the plaintiffs unless the jury should "find and believe from the evidence that defendants were in possession of said premises under an honest belief that they were the true owners thereof, and that plaintiffs, knowing that defendants were in possession of said premises under such belief that they were the true owners thereof, and with knowledge that the defendants were not true owners thereof, stood silent and allowed defendants to make valuable improvements on said premises, with knowledge that such improvements were being made by defendants, and without objecting thereto or giving defendants any notice that plaintiffs claimed to own said premises," in which event the verdict should be for defendants.
The plaintiffs did not object or except to the giving of said instruction by the court of its own motion. The question of estoppel was the only issue submitted and the jury returned a verdict for the defendants. The court sustained plaintiffs' motion for a new trial and specified as the ground therefor "that there is no evidence to support the defense of estoppel." Defendants appealed and the appeal was granted to this court.
The testimony shows that more than forty years before this controversy arose a public road was established and opened between the southwest quarter of the southeast quarter and the southeast quarter of the southwest quarter of said Section 36, Township 53, Range 34. This road ran from north to south along and upon the quarter section line to a point near a rocky bluff about five chains north of the south line of the section. To avoid construction across this bluff the road was curved to the west and again southward in the southeast quarter of the southwest quarter of said section and continues to an intersection with a road along the south line of the section. This curve in the road left an irregularly shaped tract of land containing about one and one-half acres south and east of the road in the southeast corner of said southeast quarter of the southwest quarter. At the time the road was opened and until June 24, 1924, James Morton owned all of the said southeast quarter of the southwest quarter, but on that date he conveyed the small tract south and east of the road to appellants. The land was described in the deed as During all this time one Price owned the southwest quarter of the southeast quarter, the 40 acres adjoining the Morton land on the east. At the time Morton acquired his land, a fence ran in a general northerly and southerly direction from somewhere near the bluff to the south line of the section. It seems that from shortly after the construction of the road and to the time Morton conveyed the small tract to appellants, the fence was not maintained by anyone, nor kept in repair and intact. After the conveyance to appellants the fence was repaired. However, no fence was at any time built on or across the bluff. Morton testified that he never claimed the fence as a line; that the fence was there and he let it remain and that he never claimed any farther east than "the property line between my land and the Price farm."
In 1924 appellants built a small two-room dwelling house on the bluff near the point where the road curves toward the west and in the same year built a chicken house south and east of the dwelling. Respondents testified that they were not acquainted with the Price land until 1925 when they purchased the southwest quarter of the southeast quarter from Price. This conveyance was dated and placed of record as of January 7, 1925, and respondents moved onto...
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