Home/Supreme Court of Missouri/Burnham v. Hitt

Burnham v. Hitt

45 S.W. 368, 143 Mo. 414, 1898 Mo. LEXIS 236
CourtSupreme Court of Missouri
DecidedMarch 29, 1898
StatusPublished
Cited by7 cases

This text of 45 S.W. 368 (Burnham v. Hitt) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burnham v. Hitt, 45 S.W. 368, 143 Mo. 414, 1898 Mo. LEXIS 236 (Mo. 1898).

Opinion

Gantt, P. J.

This is an action of ejectment for the. northwest quarter of the northeast quarter of section 30, township 53, range 13, Randolph county, Missouri, but as a matter of fact only a small strip of said forty acres and another small strip of the west side of the northeast quarter of the northeast quarter, of said section, are involved in this suit.

The controversy originated in a recitation in a deed made by Joseph Davis in March, 1864. Joseph Davis, who at that time owned the whole quarter section, conveyed eighty acres more or less to his son, M. K. Davis, and described it as “the east half of the northeast quarter of section 30, township 53, range 13, the west line being a creek running between the premises now occupied by said J. Davis and the land herein mentioned by this deed.” At that time the strip now in [418]*418controversy was not inclosed and a large part of the quarter section was not. In 1874 M. K. Davis sold and conveyed to B. H. Tolson “the east half of the northeast quarter of section 30, township 53, range 13,” and calls it “eighty acres more or less.” In 1884 Tolson and wife by warranty deed conveyed to defendant Hitt “the east half of the northeast quarter of section 30.......containing 80 acres more or less.” During all these years the strip now in controversy was not inclosed by a fence. After defendant had owned the east half of the northeast quarter about eight years, or in 1892, he fenced down to the creek at the north end of his eighty acres, the strip in controversy lying on the opposite or west side of the creek. Sometime in 1894 defendant fenced across the creek with a view to inclosing all of the east half of the northeast quarter of section 30, according to the survey by the United States government, but in so doing he fenced into his inclosure about two and one-half acres of the northwest quarter of the northeast quarter of said section. The accompanying plat will assist in understanding the controversy.

There was evidence tending to prove that after defendant’s purchase he cleared and fenced to the creek at the south end, across the government line at that point, but only fenced to the creek at the north end. There was evidence also that he knew the creek was the dividing line between the two eighty acre tracts; that on one occasion he obtained permission from the heirs of Joseph Davis to build across a crook in the creek on the north end in order to get stock water into his pasture, and on several occasions stated the creek was the line. After the execution of the deed by Joseph Davis to his son, he and his heirs paid taxes on the “west half,” and his grantees, on the “east half, NE. qr. of section 30.” In the year 1892 [419]*419or 1893 the heirs-of Joseph Davis petitioned for the partition and sale of the west half of the northeast quarter of section 30, ¿nd obtained a decree of partition and sale. In the petition, order of sale and advertisement by the sheriff the land was described as the “west half, NE. qr. section 30, township 53, range 13.” At the sale William E. Burnham, the ancestor of plaintiffs, bought the northwest quarter of the northeast quarter of said section 30, and received a deed containing among other recitals the following: “The northwest quarter of the northeast quarter of section 30, township 53, range 13, in Randolph coun,ty, Missouri. It was understood at said sale by order of the [420]*420parties to this suit that whoever bought the northwest quarter of the northeast quarter of section 30, township 53, range 13, was to purchase with the understanding that the branch known as Davis Creek was to be the east line.”

[419]

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Bluebook (online)
45 S.W. 368, 143 Mo. 414, 1898 Mo. LEXIS 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnham-v-hitt-mo-1898.