88 Mo. 114 | Mo. | 1885
This is a suit in ejectment to recover ■certain lands ih DeKalb county described in the petition. The cause" was taken by change of venue to’ Buchanan county, where on a trial judgment was rendered for the defendants, from, which the plaintiffs have appealed. The suit was brought against defendant Atterbury, and on motion of one Ira Brown, he was made defendant over plaintiffs’ objection and this action
The defence set up in' the answer was a tax deed conveying the land in controversy to Brown, and the special statute of limitations of three years under section 221, "Wagner Statutes, in force at the time the sale was made. Both answers set up with great particularity all the facts stated in the tax deed, and plaintiffs moved to strike out such portions of the answers on the ground that the matters stated were provable on the trial under the general issue, and should not, therefore, have been pleaded. The statute of limitations relied upon, only applied to cases where a claim of title was set up under a tax deed, and no valid objection can be made to ah answer which sets up with particularity the facts which bring the defendant’s case within the operation of the statute. If not necessary to plead it with such particularity, and the facts stated could be proved without their being stated under the general issue, the refusal of the court to strike it out was not such an error as to justify a reversal, inasmuch as by such statement the plaintiffs were informed of the specific grounds on ewhich the defence relied, of which they might otherwise have been ignorant until proved on the trial.
At the trial plaintiffs put in evidence various deeds which showed title in them to five-sixths of the land in controversy. To overcome this title, defendants put in evidence a quit-claim deed from Brown to Atterbury,
It was shown by defendants that all the records and papers of the county court and collector of revenue for DeKalb county relating to the taxes of 1872, were destroyed by fire in 1878 and here defendants rested their case, and plaintiffs offered to prove by competent evidence that the lands in controversy had not been assessed