99 Mo. 208 | Mo. | 1889
This is an action in ejectment to recover possession of a strip of land of four acres off the south side of the north thirty acres, of the east one-half of the northwest quarter of section 12, township 44, range 5, in St. Louis county.
Michael J. Gannon, Sr., who was the owner in fee of said east half, and which contained 81.90-acres, is the common source of title. By his will, he devised said east half to his two sons, Michael J. Gannon, Jr., and Joseph E. Gannon. After the death of their father, these two sons made partition of said tract of land, and each executed a deed to the other for the half which he was thereafter to own and hold in severalty, describing the same by metes and bounds. Plaintiff claims that, by the said will and deeds, Michael J. Gannon, Jr., became seized and possessed of the north thirty acres of said eighty-acre tract, and that he has acquired the title of the said Michael J. Gannon thereto, and that the four-acre tract sued for, and which is in the possession of defendants, is a part of, and within the limits of, his said thirty-acre tract. The answer of the defendants was a general denial, and a plea of the statute of limitations. The case was tried before the court without a jury ; the finding and judgment was for the plaintiff, from which the defendants appeal.
I. The plaintiff, to sustain the issues on his part, offered in evidence a deed, dated June 30, 1873, executed by Eugene J. Gannon, conveying to Michael J. Gannon, Ms wife, the thirty-acre tract aforesaid, and parol evidence showing that the grantee, Eugene J. Gannon, was the Joseph E. Gannon mentioned in the will of the said Michael J. Gannon, Sr., deceased, and
II. The plaintiff, by this deed and through mesne conveyances from Michael J. Gannon, introduced in evidence, showed a good legal title in himself to the thirty acres of land, contained within the metes and bounds of the description in said deed from Eugene J. Gannon to Michael Gannon, and introduced evidence • tending to show that the four-acre strip off the south side of said tract, described in the petition, was within the limits of said metes and bounds, and that defendants were in possession of the same. The evidence for the defendant showed legal title in the defendants, through mesne conveyances from these brothers, to the remaining 51.90 acres of said eighty-acre tract, as contained within the metes and bounds of a deed from
III. The evidence tends to show that Eugene and Michael Gannon, shortly after Eugene became of age, which was in May, 1873, agreed to divide the eighty-acre tract which their father had devised to them; that they selected three men 'to make the division; that these men went upon the land, and, supposing it to contain eighty acres, allotted the north thirty acres to Michael and the south fifty acres to Eugene. They took no measurements, ran no lines and fixed no dividing line. Before the deeds were made, however, a survey was made of the whole tract. It was then discovered to contain more than eighty acres. The dividing line between the two tracts was fixed by this survey, stones set to indicate the corners, and the dividing line marked on the ground, and the deeds were made in accordance with the descriptions given by the surveyor, by which Miehael got the north thirty acres, and Eugene the south 51.90 acres.
In this connection, Eugene J. Gannon testified : “I immediately had a plank fence built along my east line as far north as my northeast corner, as pointed out by the surveyor, the corner called for by my deed. I stopped at that corner. I also had my tenant, Dunn, put up a cross fence consisting of poles and old rails. I think this latter fence did not go back to the west line
Q. ‘ ‘ Then, if that land was enclosed by your tenant, was it, or was it not, by mistake?” A.’ “Yes, sir, * * * and without my knowledge.”
On the thirteenth of December, 1875, Eugene J. Gannon sold and conveyed his south tract to Henry Waggoner, who testified he had no knowledge whether the fence was on the boundary line described by the deed or not; that he claimed nothing but what the deed gave him; simply went by it, and never authorized anybody to make any other claim for him. January 20, 1876, Waggoner sold the tract to defendant, Broer B. .Haagsma, who went into possession in the spring of 1877, and who testifies that, under the Waggoner deed, he took possession of all the land south of the fence, claimed under that deed up to the fence, and ever since has been in possession under such claim. From the time this partition was made, and the deeds executed by the Gannon brothers, June 30, 1873, William Dunn was in possession of the south tract as the tenant of Eugene, and occupied up to the division fence, which he built, until Haagsma went into possession in 1876. This suit ' was instituted December 4, 1885. The fence that Dunn built disappeared some seven or eight years before this Suit was brought, and, two or three years before it was
It is unnecessary to set out or review the instructions in detail, conceding that the wire fence is on the same line upon which Dunn built the rail fence; that the defendants, and those under whom they claim, have been in the continuous and uninterrupted possession of the four-acre strip of plaintiff’s land enclosed by those fences with the southern tract, claiming the land up to the line of that fence for more than ten years before the institution of this suit; yet the uncontradicted evidence is that they so occupied and claimed it under the belief that those fences were on the true line, and without any intention to claim beyond the true line, as called for in their deeds, and there is not a scintilla of evidence tending to show any agreement, at any time, between the adjoining proprietors, establishing the line of such fence as the division line between the tracts, regardless of the fact whether it was the true line or not; they simply held to that line under the mistaken belief that it was the true line. Such holding is not adverse to the real owner according to the true line, as has been held repeatedly in this state. Krider v. Milner, ante, p. 145; Schad v. Sharp, 95 Mo. 573; Jacobs v. Moseley, 91 Mo. 457. The instructions of the court were in harmony with the ruling in these and other cases to the same purport, which it is unnecessary to cite-
The judgment was for the right party, and is affirmed.