Tomlinson v. Lynch

32 Mo. 160 | Mo. | 1862

Bates, Judge,

delivered the opinion of the court.

This is an action of ejectment. The plaintiffs showed legal paper title to the premises ; and the defendant, Salina Lynch, claimed to have had ten years’ possession, such as to bar the plaintiffs by the statute of limitations. The action was begun on the 28th of January, 1860. The only important question in the case is the inquiry whether Mrs. Salina Lynch’s possession was adverse to the right of the plaintiffs. Her deed, made in 1848, and her participation in the partition suit began in 1858, demonstrate that she acknowledged the title which the plaintiffs have to be good; and her possession therefore is not in denial of or adverse to it.

The answer by not denying, admitted the possession of all the defendants upon the premises, and therefore the judgment was properly rendered against all of them. The testimony of the wife of George W. Lynch, one of the defendants, was properly excluded, because her husband was a party defendant, jointly liable with the other defendants, and the offer-to withdraw the answer of her husband had no effect, as it was not carried out by an actual withdrawal.

Judgment affirmed.

Judges Bay and Dryden concur.