104 Mo. 403 | Mo. | 1891
— This is an action in ejectmentto recover a strip of land nine and one-half feet wide by four hundred and twenty-four and one-half long, in the city of Carthage, in Jasper county. The petition is in the usual form. The suit was originally brought against Nancy ■ Woodmansee, tenant of Harriet Fabyan, who was made a party defendant on her own motion. The defense set up in the answer was the statute of limitations. The case was tried before the court without a jury and resulted in a judgment for the defendant, from which plaintiff appeals.
The suit was instituted on the tenth of June, 1887. David Woodmansee is the common source of title. In 1872 he purchased a three-acre lot in the city of Carthage and took possession thereof, fenced it, erected a house, and made other improvements on the north part of said lot, and built a fence running east and west through the lot, fencing off about an acre on the south side for a cattle lot. On the thirtieth of March, 1875, David Woodmansee conveyed to his son Solomon D., by metes and bounds, the south part of the lot. Solomon took possession of his part of the lot and occupied it to the line of this east and west fence until September, 1880, when he conveyed it, by the same description, to the plaintiff, who took possession and occupied it to the same line by tenants or in person until the spring .of
It was admitted that the strip of land sued for was within the east and west boundary line called for in his deeds, which was about nine and one-half feet north of the line of said fence. The defendant Fabyan by mesne conveyance has acquired the legal title of David Woodmansee to the north part of said lot not conveyed to his son Solomon. The strip of land sued for, lying along and north of said fence, has, ever since the conveyance by David Woodmansee to his son Solomon, remained in the open, notorious, continuous, exclusive and actual possession and occupancy of the said David and his grantees, to the line of said east and west fence, and was so in the possession of the defendant when this suit was brought.
I. The only question in the case was whether such possession by the defendant and her grantors was adverse ; this question of fact was fairly presented and passed upon by the court under a series of declarations of law in which no error is pointed out, and in which we have been unable to discover any. If any error was committed, it is in the finding of the courts on the facts. When, in an action at law, the facts as well as the law are intrusted to the determination of the court, its finding upon the facts stands upon the same footing as the verdict of a jury, and will not be disturbed if there is substantial evidence to support such finding. Handlan v. McManus, 100 Mo. 124 ; Skinker v. Haagsma, 99 Mo. 209 ; Hamilton v. Boggess, 63 Mo. 233 ; Krider v. Milner, 99 Mo. 145 ; Miller v. Breneke, 83 Mo. 163.
In addition to the character of the possession of the premises in dispute by defendant and her grantors as hereinbefore noted, there was evidence introduced tending to prove that in 1875, about the time the conveyance was made by David Woodmansee to his son Solomon, or shortly after, they together built a good substantial plank fence on the line to which defendant
II. The court committed no error in refusing a new trial on the affidavit of George Cunningham. There was no diligence whatever shown to procure his evidence on the trial.