57 Mo. 384 | Mo. | 1874
delivered the opinion of the court.
This was an action of ejectment originally brought by John S. Majors, the ancestor of plaintiffs, who died during the pen-dency of the suit, aud it was revived in the name of the plaintiffs as his heirs at law.
The dispute was as to the boundary line between the land of plaintiff and defendant.
The plaintiffs’ ancestor owned the n. e. qr. of the n. w. qr. of section 4, township 52, of range 31. The patent to this land was issued 1st of M,ay 1843 from the United States.
The defendant owned the w. half of the n. e. qr. of the same section, township and range. The patent to this tract was issued 1st of May 1843, to his father 'William Rice, who afterwards by deed of 25th of June 1856, conveyed the same to the defendant in fee.
The evidence on the trial conduced to prove that in 1846 or 1847, John Majors, the ancestor of plaintiffs, procured the county surveyor of Clay county to survey and establish the line between him and William Rice, the patentee of the adjoining half-quarter section, and sent for Rice to be present at the survey; that this survey was made and the’ corners
In establishing the first line the surveyor had no field notes of section four, and in ascertaining the corner, he took the corner of section thirty-three in the township adjoining on the north, as and for the corner of section four. It turns out that section thirty-three laps over on section four; and that the corner of section thirty-three- assumed to be the same as section four was not the same, and that in surveying by the true field notes of section four it was found that the old line was not the true line, and that the true line as run recently takes more than two acres of the land held by the defendant, as above stated, under his fence and improvements. It is for this strip of land that this suit is brought.
The petition was in the usual form. The defendant denied all the allegations of the petition ; and set up the statute of limitations, also the foregoing facts as an estoppel in pais.
The case was submitted to the court for trial. But instead of trying the case, the court, at the instance of the defendant, ordered specific issues or facts tobe tried by a jury; but they
The court after thus submitting the issues, took the whole case from the jury by instructing them to find this issue for the plaintiff without regard to the evidence. The defendant excepted. The jury found the verdict as directed. A motion was made by the defendant for a new trial and overruled ; and he excepted and has appealed to this court.
During the progress of the trial questions were propounded to witnesses by the defendant to elicit evidence touching the value of his improvements on the disputed land, and the damages that would .result to him by a removal of the line. This evidence was ruled out by the court and the defendant excepted.
This was not a case in which the court could submit special issues of fact to be tried by a jury.
“In every issue for the recovery of money only, or specific real or personal property, the jury shall render a general'verdict.” (See 2nd, Wagn. Stat., 1042, § 21.) “In all other cases, if at any other time during the progress of any cause, it shall in the opinion of the court become necessary to determine any fact in controversy by the verdict of a jury, the court may direct an issue or issues to be made.” (2 Wagn. Stat., 1042, § 22.)
This was a case for the recovery of specific real property and for no other relief; and, therefore, it was a jury case, unless the parties waived a jury; and in such case the verdict must be general and not a special verdict. (See 2nd Wagn. Stat., 1040, §§ 11, 12, 13; and page 1042, § 20.)
But the merits of this controversy were the defenses relied on by the statute of limitations and estoppel in pais, both of which were legal defenses and the proper subjects of inquiry before a jury on the trial of the issues raised by the pleadings.
But where parties assume a line as the true line; but with the understanding all the time that they only claim to the extent of their paper titles, and are to relinquish the fenced laud if it should turn out to be a mistake, then as long as the claim is thus conditionally made, the possession so held is not adverse to the true owner and the statute of limitations does not run. This is the distinction which has been maintained b}r this court in all the cases, as will be seen by reference to the authorities referred to in the briefs of counsel on both sides.
The evidence in this case tended to prove that the defendant’s possession was not a conditional, but an absolute adverse possession, as against the plaintiffs and all others.
Tbe excluded evidence was properly admissible on tbis point. (See Taylor vs. Zepp, 14 Mo., 488; Blair vs. Smith, 16 Mo., 281; Lindell vs. McLaughlin, 30 Mo., 33.)
Let tbe judgment be reversed and tbe cause remanded.