| Mo. | Feb 26, 1908
This is a suit in ejectment, instituted by the plaintiff, in the circuit court of Clay county, against tbe defendant, to recover a strip of land thirty feet wide off of the south side of the southwest quarter of the northeast quarter of section five, township fifty-two, range thirty, of said county.
The petition was in the usual form, and the answer was a general denial.
The cause was tried before the court, without the intervention of a jury; and the findings and judgment were for the defendant; and, after an unsuccessful motion for a new trial, he brought the case to this court by appeal.
The evidence discloses that the plaintiff and defendant are adjoining land-owners — the former owns the southwest quarter of the northeast quarter of section five, township fifty-two, range thirty, and the defendant owns the northwest quarter of the southeast quarter of the same section.
. As before stated, the plaintiff sues for the thirty-feet strip, before mentioned, which lies within defendant’s inclosure. The plaintiff introduced evidence tending to prove that the strip of ground was a portion of his forty above described; while the defendant, upon the other hand, introduced testimony tending to prove that the strip belonged to his forty, and was no part of plaintiff’s tract. The latter also introduced evidence tending to prove that he and those through whom he claimed title had been in the exclusive, open and notorious possession of the strip of land for more than ten years prior to the institution of this suit, claiming title thereto adversely to the world. The plaintiff’s evidence, upon the other hand, tended to contradict defendant’s adverse claim of possession.
The record discloses that the court gave a number of instructions for plaintiff and defendant, submitting their respective theories of the case to the court. In
■ “7. The court instructs the jury that under the law and evidence in this case the plaintiff is not entitled to recover, and your verdict will therefore he for the defendant.”
Plaintiff duly objected and saved his exceptions to the action of the court in giving all of said instructions for defendant.
I. There was substantial evidence introduced by the plaintiff which tended to prove that the strip of ground sued for- was a part of the southwest quarter of the northeast quarter of said section five, and that he was the owner thereof at the time of the institution of this suit. That evidence clearly made out a primafacie case for him, and the court should have passed upon the facts, and should have refused defendant’s peremptory instruction numbered 7 to find for the defendant. [Barth v. Railroad, 142 Mo. 548-9.]
The instructions given by the court on behalf of the plaintiff, and the first six given at the request of the defendant properly declared the law of the case; but the giving of the seventh for defendant, in effect, withdrew all of the instructions given for both the plaintiff and defendant, and peremptorily required the finding to be for defendant.
That action of the court was clearly reversible error; and for that reason the judgment is reversed and the cause remanded for another trial.