168 Mo. 8 | Mo. | 1902
— This is a proceeding under the Act of 1897 (Laws 1897, p. 74), section 650, Revised Statutes 1899, begun on January 17, 1898, to quiet the title to all that part of the west half of the southwest quarter of the northwest quarter and the east half of southeast quarter of the northwest quarter of section 23, township 26, range 10, lying along the south of the Bloomfield and Greenville road, east of the premises occupied by" Albert Moore, west of the fence separating the tract from Ringer’s addition to the town of Bloomfield and premises occupied by Wm. W. Perry, and running southward from said road about six hundred and sixty feet, of which plaintiff claims to have been in the exclusive, peaceable, open, notorious and adverse possession with claim of, title thereto from the third day of March, 1867, until the nineteenth day of January, 1888. The petition alleges that " defendant Sykes claims title to said land, and on the nineteenth day of June, 1888, he unlawfully entered into the possession of said land and unlawfully withholds the possession thereof from plaintiff.
Defendant by answer denied generally all the allegations of the petition, except what is in the answer expressly admitted. The answer then proceeds as follows: “Defendant for further answer states that it is true that he entered into the actual possession of the premises described in plaintiff’s petition, on or before or about the nineteenth day of June, 1888; that he entered into such possession as the true owner thereof under and by virtue of a judgment of the circuit court of the county of Stoddard, rendered on the day aforesaid in an action of ejectment, instituted by this defendant as plain
Plaintiff filed reply to defendant’s answer, in which he denies each and every allegation therein, except that a judgment was obtained in favor of defendant, but states that in said suit the statutes of limitations were not pleaded and plaintiff further states that said judgment was obtained by fraud in this, to-wit, that said defendant combined and conspired with the circuit judge of the Stoddard Circuit Court, John G-. Wear, to defraud plaintiff of his said real estate; that after said cause in ejectment was tried, the cause was taken under advisement by the said judge, John Q-. Wear; that although often requested so to do the said judge, John Gr. Wear, refused to determine said suit upon the testimony submitted until such time as plaintiff the then defendant was absent from the court; that afterwards in pursuance of said conspiracy the said judge, John Gk Wear, selected a time to call up said cause and de
The court found that the plaintiff was in open, notorious, adverse and peaceable possession of the real estate in the petition described, to-wit: All that part of the west half of the southwest quarter of the northwest quarter and the east half of the southeast quarter of the northwest quarter of section number twenty-three, in township number twenty-six, range number ten, east, lying parallel to and south of the Bloomfield and Greenville road, beginning at a point one hundred and fifty feet south of said road from the intersection of said road with the east line of the tract of land and premises now occupied by Albert Moore, and on the east line of said premises, running east of said point and parallel with said road to the west line of the real estate and premises now occupied by Wm. W. Perry, running thence south along the west line of the premises so occupied by said William W. Perry and along the west line of Ringer’s addition to the town (now city) of Bloomfield, about five hundred and ten feet, to a fence, thence running westward to a point on the line extended south from the east line of the said premises, occupied by said Albert Moore, thence north along said line last mentioned to the place of beginning, being the tract described in plaintiff’s petition, except a strip of land one hundred and fifty feet wide on the north side of the tract described in said petition. That said possession had lasted from about the third day of March, 1867, until the nineteenth day of June, 1898. That plaintiff was entitled to the possession thereof on said nineteenth day of June, 1888, but that defendant, unlawfully and by virtue of an erroneous judgment took possession of said real estate, on or about the nineteenth day of June, 1888, and still unlaw
After unsuccessful motions for new trial and in arrest defendant appeals.
In 1867, plaintiff purchased seven acres of land off of the south end of the east half of the southeast quarter of section 23, township 26, of range 10, upon which there was a field containing about twelve acres that extended over onto the adjoining land, inclosing about five acres not bought by him, upon which said five acres there was at the time a house. In 1883 the defendant Sykes bought from the heirs of P. H. "Whitlege, and in 1885 from Isaac Brand, who were the owners of said five acres, the title thereto. After his purchase defendant had his land surveyed and demanded possession of plaintiff of that part of it which was in his (plaintiff’s) field, whereupon plaintiff refused to surrender the possession, and Sykes on August 29, 1886, brought suit in ejectment against Bedford for the possession of his land in the circuit court, of Stoddard county, and on June 19, 1888, recovered judgment therefor, and oil February 5, 1889, was put in possession of it under an execution, or writ of possession, duly issued upon said judgment, and has so remained ever since.
This case seems to have been determined by the court' below upon the theory that the judgment in favor of the defendant in this case against the plaintiff herein in ejectment
Nor had the court the right under this proceeding to render judgment for plaintiff for the possession of the land, as no such result is contemplated by the statute. The statute is simply what it purports to be, an act “to determine and quiet the title to real estate,” in which not one word is said about possession. It provides that “any person claiming any title, estate or interest in real property, whether the same be legal or equitable, certain or contingent, present or in reversion, or remainder, whether in possession or not, may institute an action against any person or persons having or claiming to have any title, estate, or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property,” but does not provide either directly or indirectly that the right
Moreover, there are no facts stated in tbe petition upon which to predicate sucb a judgment.
In conclusion it may not be out of place to say that there was no evidence that tbe judgment in tbe ejectment suit was obtained by fraud, and that from tbe time defendant Sykes took possession of tbe land under it and thereafter, bis possession was adverse, and tbe institution of this proceeding did not stop tbe statute of limitation from running in bis favor.
Eor these considerations the judgment is reversed and tbe cause remanded.