42 Mo. 568 | Mo. | 1868
delivered the opinion of the court.
This was an action of ejectment, in the Jefferson Circuit Court, to recover certain real estate described in the petition. The answer of Yinyard, the defendant below, admitted the possession of only a part of the tract, alleging that he had lawfully acquired the same in pursuance of a written contract with Oliver D. Harris, the father of the plaintiff, for the purchase of the same. The death of the father is also alleged, and the remainder of his heirs asked to be made parties to the suit. The purchase-money for that portion of the tract claimed by defendant being tendered in court, a decree was asked for, divesting the heirs of Oliver D. Harris, deceased, of the same, and vesting the title thereof in the defendant. It appears from the record that an attempt was made to bring in the heirs of the deceased, only one of whom appeared and answered. The court thereupon proceeded to try the issue tendered by the defendant’s answer, and upon a special finding of the facts in the case rendered a judgment granting the relief prayed for. It is manifest, upon this statement of the case, that such a judgment cannot be permitted to
The real question for determination was whether the land in question belonged to the- plaintiff or to the estate of his deceased father. That was simply a question of fact depending for its solution upon the evidence in the cause, and which we do not feel authorized to review. That portion of the answer which prays for the decree of title in the defendant should have been stricken out. It has no proper connection with this case, and should be disregarded. The case will then stand upon the simple issue as between the plaintiff and the estate of his deceased father, it being averred by the answer that these names are identical.
The judgment, of the District Court is therefore reversed and the cause remanded to the Circuit Court for further trial.
