Fenwick v. Gill

34 Mo. 194 | Mo. | 1863

Bates, Judge,

delivered the opinion of the court.

This was an action of ejectment for the south-west quarter and the south-east fractional quarter of section 31, and all of fractional section 32, in township 35 north, range 14 east.

The defendant admitted his possession of section 32,__and of parts of the two quarters of section 31, and claimed title thereto, and disclaimed possession or title to the remaining parts.

At the trial, the plaintiff showed title to the south-west quarter of section 31, but did not show any title to the southeast quarter of that section, nor to fractional section 32.

The defendant showed no title to any part of the premises.

Judgment was given for the plaintiff for fractional section 32, and for all that part of the south-east quarter of section 31, as well as of the south-west quarter thereof, which was in the possession of the defendant. This judgment was manifestly erroneous, and must be reversed.

Here, in this court, the defendant offers to remit all right to recover the portions of the land not embraced in his title papers, and asks the court to modify the judgment accordingly. Were this court to undertake to render such judgment, in this case, as the court below should have rendered, it would be necessary also to apportion the damages and monthly value of the premises, which the record does not furnish the means of doing with accuracy.

It was urged, in this court, that the Circuit Court erred in striking out an answer of the defendant, but the record does not show any exception taken to that action of the court, and the defendant filed an amended answer, which stated that it was filed by consent and by leave of court, in place of all preceding answers withdrawn.

Judgment reversed and the cause remanded.

Judges Bay and Dryden concur.