163 Mo. 449 | Mo. | 1901
This is an action of ejectment. The original petition was filed April 4, 1894. This is the second appeal in the case. [Bricken v. Cross, 140 Mo. 166.] On the former appeal the judgment, which was for the plaintiff, was reversed on the ground that the petition did not describe the land embraced in the judgment, and the cause was remanded. Upon the return of the case to the circuit court the plaintiff filed an amended petition and the trial resulted again in a verdict and judgment for the plaintiff for a small part of the land sued for, from which the defendants take this appeal.
Upon the trial, it was admitted that Benjamin E. Turner was the original owner, and both plaintiff and defendant claim title under respective deeds through him; the defendant also claimed title by adverse possession. The plaintiff read in evidence a deed to himself from Turner and wife dated July 29, 1882, conveying land under the following description: “All twenty acres off of the north end of the following described tracts of land, to-wit: Thirty acres west part of the east half of the northeast quarter, also twenty acres in the east part of the west half of the northeast quarter of section 17, in township 52 of range 22,” in Carroll county. The defendants objected to the deed in evidence because the description of the land was not definite enough to show the location of the twenty acres that were attempted to be conveyed. The objection was overruled and exceptions preserved. That deed, with evidence as to the value of the rents and profits, was all the evidence of the plaintiff in chief.
Defendants offered a deed from Turner and wife to Samuel J. Snider dated October 17, 1881, conveying land described as follows: “All that part of the east half of the east half of the west half of the northeast quarter of section 17, in township 52, range 22, that lies between the Wakenda creek and the foot of the bluff, containing twenty acres more or less.”
The instructions to the jury directed a verdict for the plaintiff for that part of the land which the verdict covered, unless the jury should find for the defendants on the issue as to adverse possession, and on that issue required the defendants to show ten years’ adverse possession prior to April 30, 1894, the date of filing the original petition, refusing an instruction asked by defendants fixing the date at November 13, 1897, the time of filing the amended petition.
I. The question of whether the date at which the defendants’ ten years possession should have-been complete to give them title should 'be that of filing the original, or that of filing the amended petition, depends on the question of whether the amended petition merely restated, in more accurate words, the same cause of action that was stated in the original, or stated a different cause of action, or for the first time stated any cause of action at all.
In Buel v. St. L. Transfer Co., 45 Mo. 562, the law was thus stated: “Where the amendment sets up no new matter or claim, but is a variation of the allegations affecting a de
When this cause was here on the former appeal the court, per Burgess, L, said: “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 doing so 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 it's description the land sued for, even though the judgment describes that part correctly which the plaintiff recovered, it is nevertheless erroneous because unauthorized by the petition.”
The original petition calls for four and one-half acres of land, and describes or attempts to describe by metes and bounds the particular four acres and a half called for. This description, after fixing the point of beginning, is: “Thence running directly south-50 links; thence running west 12.50 chains; then north 6.70 chains; thence east 12.51 chains north 70 degrees west to the place of beginning.” Following the courses and distances there indicated, if we should attempt to plat the land called for, we should have a plat similar to this:
The manifest error in the description is in the last call for a northwest course to reach the' place of beginning, which could only be reached by a course south. If the amended petition had merely corrected that error by describing a line on the east of the plat enclosing the area, and if, as so enclosed, it designated the land sued for, it would have been an amendment of the original cause of action and not the introduction of a new subject. But if such an amendment had been made it would have shown a plat containing 8.37 acres, whereas the original petition calls specifically for 4.50 acres. Therefore, if the metes and bounds had been so amended and had thus included the land intended to be sued for, it would, not have specified what part of the area described was intended, whether the north half or the south half, the northeast or the southwest triangle. A line run from the northwest corner of the plat to the point of beginning would mark off to the southwest a
Thus it will be seen that whilst the land called for in the amended petition is mostly included in that probably attempted to be called for in the original petition, yet, even if the particular error spoken of in the original had not occurred, there was nothing in that petition to indicate to the defendants where the four and a half acres claimed were located, and not until the amended petition was filed were they so informed. This is not a case in which tire plaintiff sued for the whole tract of land embraced within the bounds stated in his original petition and afterwards filed an amended petition claiming a particular part only of that originally sued for. The original petition in this case, with the error corrected, called for an undefined four and a half acres within an area of eight and thirty-seven hundredths. It only differed in degree in uncertainty from what it would have been if plaintiff had sued for an undefined four and a half acres in the northeast quarter of the section mentioned.
As this amended petition really introduced into this ease a cause of action for the first time, it is proper to observe that where an original petition states a cause of action, but states it inaccurately or imperfectly, it may be amended, but when it states no cause of action at all, there is nothing to amend. But in this case the amended petition was filed without objection, the issues were joined and trial had, therefore, the propriety of allowing it to be filed is not in question.
II. The instructions given show that the court interpreted the deed from Turner to plaintiff to mean that the thirty acres in the west part of the east half of the northeast quarter were to be laid off in a parallelogram measuring 7.50 chains from east to w’est and 40 chains from north .to south, and being the westernmost part of the east half of that quarter section, and that the twenty acres referred to in the east part of the west half of that quarter were to be laid off in like shape along its whole length measuring 5 chains from east to west and 40 from north to south, so that the two together would make a body of fifty acres, 12.50 by 40 chains, and the twenty acres intended to be conveyed were to be laid off from the north end of that fifty-acre body in a parallelogram 12.50 by 16 chains. So the court construed that the paper title to so much of the land sued for as lay within the thirty-acre tract was in the plaintiff, since the prior deed from Turner to Snider, under which the defendants claim, involved only the
Let us illustrate these calls by a diagram: The square represents the quarter section:
The line B 0 running north and south divides the quarter section into east and west halves. J K marks off thirty acres on the west side of the east half, and A D twenty acres on the east side of the west half, and if those are the divisions called for, then HI is the southern line of the twenty acres conveyed by the deed to plaintiff. But the plaintiff’s deed does not locate the twenty acres in the west half more definitely than to say they are in the east part of the west half of the quarter. The east part of the west half contains forty acres,
It is argued for respondent that it is immaterial where the twenty acre tract in the east part of the west half of the quarter is located, because the verdict covers only that part of the land sued for that lies in the thirty-acre tract to the east. But since the plaintiff’s deed calls for twenty acres cut off of the north end of those two tracts, we can not draw the south line through the thirty-acre tract on the east until we know where to draw it also through the twenty-acre tract on the west.
The instructions, therefore, which assumed to locate the twenty acres conveyed in the deed from Turner to the plaintiff, were erroneous.
The judgment is reversed.