64 Mo. 545 | Mo. | 1877
delivered the opinion of the court.-
This was a suit in ejectment, to recover a lot in Carthage, Jasper county. The petition is in usual form, and the answer contains a general denial. On the trial, plaintiff obtained judgment, from which defendant has appealed. The evidence tends to show that one S. N. Hostetter was, on the 7th day of February, 1873, in possession of the lot in . controversy, claiming it as his own, and that defendant was in possession of the same on the 16r.h day of September, 1873.
Plaintiff offered in evidence the following deeds :
A mortgage deed from S. N. Hostetter, dated February 7ch, 1873, do Meyers & Mohr, to secure the payment of a note for $620.44. This deed contained a power of sale, and was filed for record in the recorder’s office of Jasper county on the day of its execution;
Also, a deed from said Meyers & Mohr, to one Griswold, dated August, 30th, 1873, and a quit-claim deed of the
All the questions presented in the case arise upon the action of the court in giving the following instruction:
“ The court instructs the jury that if they believe from the evidence that S. N. Hostetter was in possession of the premises in controversy, claiming them as his own on the 7th day of February, 1873, and that Hostetter executed to Meyers & Mohr the mortgage offered and read in evidence, and that Meyers & Mohr sold said property under said mortgage, and that S. B. Griswold purchased the same, and that Griswold conveyed the same to plaintiff, Ezra Miller, and that defendant entered into possession of the same under said Hostetter, subsequent to said mortgage, under a contract of purchase or otherwise, they will find for plaintiff.”
It is well established that in ejectment, where plaintiff and defendant claim through a common source of title, that it is sufficient for the plaintiff to deduce his title from him who is the common source of title. (Brown vs. Brown, 45 Mo. 412; 2 Greenl. Ev., § 807; Adams Eject. 248; 1 Wend. 418; 7 Cow. 637.) It is sufficient for plaintiff to show prior possession as owner, either in himself or his grantor, and if it shall appear that the defendant holds under the same grantor, it is unnecessary to go further; the title of the common grantor is acknowledged, and so far the rule, that the plaintiff must recover on the strength of his own title, is departed from.
Applying these principles to the case at bar, the action of the trial court, in overruling the objection of defendant to the admission of the deeds offered in evidence, and in giving the instruction complained of, was fully justified.
It is also said that inasmuch as the jury, in their verdict, assessed no damages to plaintiff, and the court in rendering the judgment thereon, entered judgment for $105 damages, it should, for that reason, be reversed. This objection is disposed of by the fact that plaintiff, in this court, has entered a remittitur of the said sum of $105, which obviates the necessity for a reversal of judgment, which is in all respects affirmed, except as to said sum of $105 ; plaintiff and appellee being required to pay all costs of the appeal, which are by this court adjudged against him.