264 Mo. 475 | Mo. | 1915
Plaintiff brought ejectment in the circuit court of Buchanan county and had judgment. Defendant appealed for that the record is erroneous. There is no bill of exceptions. The errors urged are alleged to be in the petition, and in the verdict. The petition, omitting the prayer for judgment and formal parts, is as follows:
“Comes now the'plaintiff, and for his cause of action states that he and his wife, Agnes Collins, are the owners by the entirety of lot 23 and the east ten feet of lot 22, in block 3, Landis ’ addition to the city of St. Joseph, Buchanan county, Missouri, and on and prior to the 12th day of March, 1911, plaintiff was entitled to and was enjoying the peaceable possession of said property; that afterwards, to-wit, on or about the 13th day of March, 1911, the plaintiff then being so entitled to the possession of said property, the defendant entered into said premises and took possession of a strip off of the N. fifty feet of the west eighteen inches of same, to plaintiff’s damage in the sum of $100, and unlawfully withholds from plaintiff the possession thereof.”
The verdict, which is complained of, signature and formal parts omitted, reads thus:
“We, the jury in the above entitled cause, find for plaintiff for possession of the lands sued for, being
The judgment followed the above verdict and was as to the description therein, responsive thereto.
I. It is contended (1) that the petition does not state any cause of action; (2) that the verdict being, as it is alleged, special, is insufficient, and (3) that it is so vagme and uncertain as to be void.
By a reference to the petition upon which the. ease was tried it will be seen that the title to a strip off of two parcels of land, or off one parcel, which consists or is made up of two separate lots or tracts, is averred to be in plaintiff and his’ wife as tenants by the entirety, that is to say, all of “lot 23 of block 3 and the east ten feet of lot 22 of said block 3 in Landis’s addition to the city of St. Joseph,” and that defendant, as it is further averred, “took possession of a strip off of the N. fifty feet of the west eighteen. inches of same.” It may be inferred from the petition, but it is not alleged, and except by such inference it does not appear therefrom, that said lot 23 and the east ten feet of lot 22 are contiguous and together form one compact parcel. But it is just as easy to infer that the parcels are separate and distinct; in which case it is not possible to say to what the word “same” refers, or from which lot the “same” is to be taken, or the width of the strip which is to be carved ‘£ off the north fifty feet of the west eighteen inches.” No difficulty was incurred, we apprehend, upon the trial in exactly and definitely locating the locus in quo, from which and the place at which, the carving off of the 18 inches in dispute was to be done, but defendant was entitled to
In passing we may say that the original petition brought up to us by the respondent’s additional abstract cannot avail respondent; for the reáson that this petition was abandoned and the case tried upon the amended petition which we set out in our statement. An abandoned pleading is no longer a matter for the record proper; it becomes when abandoned, but ah evidentiary matter available' ordinarily only to the adversary side as an admission against interest and to be preserved for our consideration only in a bill of exceptions with other matters of mere evidence. There is no bill of exceptions in the instant record, and so there is no petition before us for any purpose, except the amended petition upon which the case was tried below.
That the rule is that the petition must describe the land sought to be recovered so definitely that the officer who executes the writ of possession will know to' what land plaintiff is entitled, can not be doubted. [Griffin v. Hall, 111 Ala. 601; Lenninger v. Wenrick, 98 Ind. 596; Livingston Co. v. Morris, supra.] Unless therefore the fact that the attack upon the petition' herein came in at such time, i. e., after judgment, as that it is fully protected by our Statute of Jeofails, the contention of defendant ought to be sustained.
In the Statute of'Jeofails, which ought to cure many harmless errors which it does' not cure, we find no provision which reaches the difficulty which presents itself here. [Sec. 2119, R. S. 1909; Hart v. Harrison Wire Co., 91 Mo. 414.] Clearly, if the de
For reasons which are fairly obvious, arising it is probable from the fact that there was not in England when we got the common law any deed registry, or recorder’s act, and that lands bore for the most part local names by which estates were better known than the same could have been known by any mere description, there was not in England any very rigid requirement as to strict accuracy of description in a declaration in ejectment. [Tyler on Ejectment, 393.] But we cannot find that this lax rule of description has ever prevailed in the United States. The general rule seems to be that sufficient accuracy and definiteness of description shall be employed in the petition as that a judgment being obtained the officer may be enabled to - locate the land in dispute and execute process thereon. [Newman v. Lawless, 6 Mo. 279; Livingston Co. v. Morris, 71 Mo. 603; 15 Cyc. 92; Simmons v. Thompson, 138 Ga. 605; Deweese v. Maxwell, 125 S. W. (Ky.) 145; Griffin v. Hall, 111 Ala. 601; Lenninger v. Wenrick, 98 Ind. 596; Tracy v. Harmon, 17 Mont. 465; Buesing v. Forbes, 33 Fla. 495; Holly River Coal Co. v. Howell, 36 W. Va. 489.] Viewed in the light of the above rule, we think it is clear that this description can not be cured either by verdict, or by any of the several Statutes of Jeofails.
No allegation having been made as to the relative position in Landis’s addition in which said lots 22 and 23 lie to each other, it is clearly impossible to say from the petition whether the land in controversy is to be taken off of lot 22 or lot 23. The record, since there is no bill of exceptions here, does not show whether said lot 23 is north, or south, east or west of said lot 22, and since there is, we notice, no uniformity as to the rela
The alleged defects in the verdict we need not consider, since it is scarcely possible that error will again occur therein at the next trial, whether error be now therein-or not. We quote the verdict, however, in juxtaposition with the description in the petition, to illustrate how far short the petition fell of a proper description, even granting arguendo the sufficiency of the verdict. It follows that it is not necessary to decide whether the verdict be vague and indefinite as alleged and whether it be sufficient or not, since we find the petition fatally defective for lack of the sufficiency of the description of the land in controversy. Let the case be reversed and remanded for a new trial, if counsel for plaintiff be advised to amend his petition. It is so ordered.
