128 Mo. 670 | Mo. | 1895
This is an action in ejectment instituted in tbe circuit court of Cass county, by Thomas D. Evans and Henrietta Evans, plaintiffs, on the third day of October, 1891, against L. O. Kunze for a narrow strip of ground in lot 4, in block 2, in tbe city of Harrisonville, covered by defendant’s building. Tbe case was tried by tbe court without a jury. Judgment for tbe defendant, and tbe plaintiffs appeal.
Tbe petition is in common form, tbe answer a general denial. Plea of tbe statute of limitations, and a plea of estoppel, as follows:
“For another and further defense and answer herein, defendant says that on tbe-day of-, A. D. 1885, be entered upon tbe construction of a brick building situate on tbe north twenty-nine feet of tbe lot above described, and with tbe knowledge, consent and acquiescence of plaintiff T. D. Evans, defendant contracted with plaintiff to pay and did pay one*675 half of the costs of constructing the said wall with the agreement that it should stand and be used as a partition wall between said Evans and defendant.
“That with the knowledge, acquiescence and consent of plaintiff Evans, this defendant constructed his building on said lot, covering twenty-eight and one sixth feet on the north side thereof, beginning on the east end and extending back-feet thereon, and placed lasting and valuable improvements thereon. Wherefore, plaintiff Evans is estopped from claiming title to the land occupied by said building described above, and he prays judgment accordingly and for costs.” Issue joined by reply.
Block 2 in the city of Harrisonville was originally divided into three' lots of equal size, fronting on the public square and numbered from the north, 4, 5, and 6. Joel D. Campbell was the owner of lot 4 in said block, and is the common source of title. On the eleventh day of January, 1845, he conveyed to Eli Dodson a part of said lot contained within the following metes and bounds: “Beginning eighteen feet north of the northeast corner of lot 5 in said block, running thence north nineteen and one half feet, thence west one hundred and sixty-five feet to the alley, thence south nineteen and one half feet, thence east to the place of beginning.” The plaintiff, Henrietta M. Evans, by mesne conveyances, acquired Dodson’s title to this part of said lot, and also to one foot more on the south side thereof, making her lot front twenty and one half feet. Afterward, on the seventh of December, 1846, Campbell conveyed to John Cummins “all that part of lot number 4 in block number 2, north of Eli Dodson’s line, which part of said lot is about twenty-nine feet fronting the public square and extends west back to the alley.” The defendant by mesne convey
When these deeds were made, the width of the lot in front was evidently supposed to be sixty-six feet six inches. The Dodson deed, under which plaintiff claims, is the prior one and fixes specifically the boundaries and quantity thereby conveyed. The quantity conveyed by the Cummins deed is estimated; the southern boundary of the parcel conveyed being fixed, however, by the north line of the Dodson grant, which in front was thirty-seven and one half feet north of the northeast corner of lot 5. It appears from the evidence on this trial that the lot in fact only fronted sixty-four feet, five inches, so that the Cummins deed only conveyed the twenty-six feet, eleven inches, lying between the north line of the Dodson grant and the north line of the lot, instead of twenty-nine feet as estimated, and the true line between these coterminous proprietors is a line drawn that distance from the north line of the lot and block. Mrs. Evans acquired title in 1871, and Kunze in 1867, and each had ever since, until 1885, been in the occupancy of their respective subdivisions of said lot 4, claiming to own the same according to the lines called for in their several deeds.
In 1885, Evans and Kunze, being desirous of improving their property, each removed the old structures on the front part of their respective lots, and erected substantial brick business houses thereon, having a partition wall in common. The house built by Kunze, at a cost of over $6,000, being twenty-eight feet, two inches, in front by eighty feet deep, from the outside of the north wall, which was on the north line of his lot, to the outside of the south wall, extended fifteen inches over the true division line onto the plaintiffs’ premises, and they in this action seek to recover this strip, or rather so much of it, as is in the
There was evidence tending to prove the hypothetical facts stated in the following declarations of law given for the defendant, and of which the plaintiffs complain:
“1. If the court sitting as a jury, find and believe from the evidence that, in the year 1885, the defendant Kunze, and plaintiff Evans, were contemplating building brick superstructures on their respective tracts of land, and a difference arose between them as to the true boundary, and that neither party knew the exact dividing line, and thereupon the said Kunze caused a survey of the ground to be made and a line located; and that the said Evans made no objections to the line thus located, but accepted the same, by telling the workmen to go ahead and build the partition wall thereon, and by paying for one half of the cost thereof, and so erecting his own building as to conform to said line, and that, but for such acceptance of said division line, the said Kunze would not have built his brick storehouse up to said line, then the verdict should be for defendant Kunze.
“2. The court further declares the law of this case to be that if, in the year 1885, plaintiff and defendant were making preparations to build brick buildings upon their respective tracts of ground, and, being uncertain as to the true boundary line dividing their said property, a difference arose as to where the partition wall should be built; and thereafter the county surveyor was called in by Mr. Kunze to locate said line, for the purpose of fixing a place to construct the partition wall, and. the surveyor did so locate it twenty-eight feet and two inches or thereabouts from the north line of said Kunze lot, that the said Evans had his*678 attention called to the location of said line by Mr. Kunze, or his contractor, and upon inquiry expressed himself as being satisfied that the wall should be built upon the line so located, and thereupon the building was constructed by Mr. Kunze on twenty-eight feet and two inches in width off the north side of lot four, extending from the east end to a point eighty feet west thereof, and the partition wall on the line so fixed was paid for one half by Kunze and one half by Evans, and has been used and acquiesced in by both parties as the boundary line ever since that date,- then the plaintiff, Evans, can not recover.”
■The doctrine announced in these declarations is supported by a long line of decisions in this state, of which it is only necessary to cite the following: Taylor v. Zepp, 14 Mo. 482; Blair v. Smith, 16 Mo. 273; Turner v. Baker, 64 Mo. 218; Acton v. Dooley, 74 Mo. 63; Jacobs v. Moseley, 91 Mo. 457; Schad v. Sharp, 95 Mo. 573; Atchison v. Pease, 96 Mo. 566; Krider v. Milner, 99 Mo. 145.
The facts found by the court bring the case so clearly within the principles established in these cases and declared by the court, from whatever standpoint they be viewed, that we deem it unnecessary to discuss these declarations of law so far as they apply to the plaintiff T. D. Evans, upon whose acts, declarations and conduct they are based.
It is contended, however, that the judgment should be reversed, because it appears from the evidence that the legal title to the premises in controversy is in the plaintiff, Mrs. Evans, and that she can not be estopped from asserting her right to the possession of the premises, by the acts, declarations or conduct of her husband. This point was not made on the trial in the court below in any manner whatever. It was not necessarily raised by the pleadings. It does not appear
While ejectment is the appropriate form of action in this state to try title, yet it is by nature a possessory action. Title to real estate does, not always draw to it the right of immediate possession. Hence, while the action of ejectment always tries the right to possession, it may not always try the title. Hence a simple judgment in ejectment is not a bar to a subsequent like action upon the same title.
Now, although the evidence discloses that the legal title to the premises is in the plaintiff Henrietta M. Evans, and that she is a married woman, it also discloses the fact that she is the wife of her coplaintiff, T. D. Evans, and it is well settled law in this state that a husband is entitled to the possession of his wife’s lands and may sue in ejectment therefor without joining her in the action. Flesh v. Lindsay, 115 Mo. 1; Peck v. Lockridge, 97 Mo. 549; Mueller v. Kaessmann, 84 Mo. 318; Gray v. Dryden, 79 Mo. 106; Kanaga v. Railroad, 76 Mo. 214.
The plaintiff T. D. Evans, juri mariti was entitled to the possession of his wife’s fee simple lands, and as such was the proper party to sue to recover the possession of the premises. To his action for the possession, his wife was not a necessary nor a proper party. The right to the possession of the property by the husband Evans upon the title of his wife, was in fact, the only issue tried by the court below, and is the only case before us for review, for as has been
The court correctly held that T. D. Evans, by his acts, declarations and conduct, had estopped himself from asserting his right to the possession of the premises upon the title of his wife as against the defendant, and might well have entered judgment against him, as it did, for the costs. The fact that his wife was unnecessarily joined with him as a party plaintiff and included in the judgment, affords no ground for reversal of the judgment since “such joinder is not a fatal error, and may be corrected in this court by striking out her name as party plaintiff, and leaving the judgment to stand in the name of the husband alone. ” Mueller v. Kaessmann, 84 Mo. 318. It will accordingly be so done, and the judgment affirmed.