Bricken v. Cross

140 Mo. 166 | Mo. | 1897

Burgess, J.

This is ejectment for' the following described tract of land in Carroll county, Missouri, to wit: Four and one half acres of land commencing at a point fifteen and fifty hundredths chains directly south of a point twelve and fifty hundredths chains directly west of the northeast corner of section number 17,fin township number 52, of.range number 22; thence running directly south fifty' links; thence running west twelve and fifty hundredths chains; thence running north six and seventy hundredths chains; thence running east twelve and fifty-one hundredths chains; north seventy degrees west to the place of beginning.

A trial of said cause was had at the July term, 1894, which resulted in a judgment in favor of plaintiff for the possession of the land. The judgment was as follows:

“Now come the parties by attorneys and all and singular, the matters being heard before the court without a jury, the court doth find that the defendants are guilty of trespass and ejectment as complained of in the petition. It is therefore adjudged by the court that plaintiff have and recover of the defendants the possession of the following described real estate situate in Carroll county, Missouri, to wit: Beginning at a point 12.50 chains west and 16 chains south of the northeast corner of section 17, township 52, range 22, thence west 7.50 chains to west line of east 1-2 of northeast 1-4 of said section 17, thence north along said line to south side of public road leading to Burkhart bridge. Thence in an easterly direction along south side of said road to a point north of place of beginning; and the plaintiff; recover of' defendants his costs and have writ of restitution and execution.”

Defendants then filed motions for a new trial and in arrest, which were overruled, and they saved their exceptions, and bring the case to this court by appeal.

The only grounds insisted upon by defendants for a reversal of the judgment are: First, that the judgment rendered does not conform to the petition in the description of the land; second, it does not appear that the premises recovered are within the boundaries of the description contained in the petition.

On the twenty-third day of March, 1897, during the regular March term of said Carroll circuit court, said court, of plaintiff’s motion, amended and corrected the judgment theretofore rendered in this cause by a nunc pro tunc entry of record, so that the judgment as it now appears of record reads as follows:

“Now comes the parties by attorneys, and all and singular the matters being heard before the court without a jury, the court doth find that the defendants are guilty of trespass and ejectment as complained of in the petition. It is therefore adjudged by the court that plaintiff have and recover of the defendants the possession of the following described real estate situate in Carroll county, Missouri, to wit: Beginning at a point 12 and -nfo- chains west and 16 chains south of the northeast corner of section 17, in township 52, of range 22; thence west 7 and -r¡fo- chains to the west line of the east half of the northwest quarter of said section 17; thence north along said line to south side of public road leading to Burkhart bridge; thence in an easterly direction along the south side of said road to a point north of place of beginning; thence south to place of beginning; being part of the lands described in plaintiff’s petition; and that plaintiff recover of defendants his costs and have writ of restitution and execution.”

The land sued for is incorrectly described in the petition. The courses are given as, south five chains, west twelve and five tenths chains and then north seventy degrees west to the point of beginning. This is an impossibility. The last corner in order to close survey should be south sixty-seven chains. The land described in the judgment can not be platted from the description given therein, besides the description given in the judgment must of necessity be based upon the description in the petition whose imperfections were not cured by the judgment. The petition being bad the judgment based upon it is also bad.

While it may be that from the description of the land in the judgment an officer charged with the execution of a writ of possession might be able to put plaintiff in possession of the land therein described, certain it is, that it can not be platted as thus described, because in so doing it must have for its base the description given in the petition, which is no foundation at all. If the petition states no cause of action because of its failure to describe or embrace within its description the land sued for, even though the judgment describes that part correctly which plaintiff recovered, it is nevertheless erroneous because unauthorized by the petition.

TJnder such circumstances the judgment can not be permitted to stand. It is therefore reversed, and the cause remanded.

G-antt, P. J., and Sherwoob, J., concur.