Smith v. Lindsey
89 Mo. 76
Mo.
1886
Check Treatment
Norton, J.

This suit is by ejectment to recover the possession of the southeast quarter of section 23, township 27, range 21, located in -Hickory county. The defendant answered denying “ every material allegation .of the petition.” On the trial of the cause the court instructed the jury that under the evidence the plaintiff •could not recover, and rendered judgment for defendant, *79•from which* the plaintiffs have appealed, and assign for error the action of the court in giving the above instruction and refusing to receive proper evidence.

The evidence of plaintiffs tended to show that in 1876, and for sometime prior thereto, one John D. Pitts had been in the possession of the land sued for, claiming it to be his own; that in 1876, said land had, by virtue of certain attachment proceedings, been sold as the property of said Pitts, sheriff deeds made to the purchasers, under which other mesne conveyances “hatever title ■said Pitts owned had passed to the plaintiffs. The ■ouster was proved as laid in the petition. During the' progress of the trial defendant was introduced by plaintiffs, who testified that in 1880 he was, and still is, exercising control over the land as his own, and that he regarded the land as his. He was then asked if he held the land as tenant of parties who held under Pitts, and whether he claimed title to the land as derived through parties who claimed title through said Pitts. The court .sustained objections made to these questions and refused to allow the witness to answer them, and in this, we think, committed error.

In the case of Hardin v. Miller, 64 Mo. 545, it is held that, in ejectment, when plaintiff and defendant claim through a common source of title, it is sufficient for the plaintiff to deduce his title from the common .source of title. It is sufficient for plaintiff to show prior possession as owner, either in himself or grantor, and if it shall appear that defendant holds under the common grantor it is unnecessary to go farther, the title of the •common grantor is acknowledged, and so far the rule that plaintiff must recover on the strength of his own title is departed from. As against some unknown person the title of both may be worthless, the common grantor not being the true owner, but as between the two parties we have only to enquire which one acquires the title of the grantor, whatever that might have been. *80When, this is shown by the plaintiff he establishes a prima facie right, and unless the defendant can trace his title or right to the true owner, if such common grantor is not the true owner, or can show a better title to the interest of such grantor, the plaintiff must prevail. There can be no doubt but that the plaintiffs had the right to show, if they could, that defendant derived whatever interest he had in the land in dispute from Pitts, or those who claimed under him, and that Pitts-was the common source of title, and there can be no doubt of plaintiffs’ right to establish that fact by any competent .witness cognizant of the fact; and as defendant was a competent witness, the questions propounded to him for the purpose of showing this fact, which was relevant to the issue, and -which plaintiffs had aright to prove, were proper, and the court committed error in refusing to allow the witness to answer them, and for this error the judgment will be reversed, and, as the cause will be remanded, it will be proper to add that, as the record of deeds in Hickory county had been destroyed by fire, resort to secondary evidence to establish what the lost records would show, is permissible, and the abstract and index to the record of deeds required to be made by sections 3816 and 3819,. Revised Statutes, competent evidence for ' that purpose, the plaintiffs first establishing the fact that the original deed, or deeds, are not in their possession, or under their control, and could not be found. The evidence introduced, we think, laid a sufficient foundation for the introduction of the secondary evidence offered.

Notwithstanding the answer of the defendant only denied the “material allegations of the petition,” inasmuch as no objection was made to it in the trial court, and the parties proceeded to trial, treating it as sufficient, we are justified, by repeated rulings of this court,, in omitting to consider objections now made in this *81court to its sufficiency. Edmondson v. Philips, 73 Mo. 57; Collins v. Trotter, 81 Mo. 275.

Judgment reversed and cause remanded.

All concur.