Patton v. Fox

78 S.W. 804, 179 Mo. 525, 1904 Mo. LEXIS 28

Opinion

BBÁCE, P. J.

— This is an action in ejectment against the defendant, James H. Patton and his tenant, Otto Fox, to recover the possession of a small irregular tract of land, described by metes and bounds in the petition, containing two and 11-100 acres, situate in the northeast quarter of section 34, township 52, range 1 east, in Pike county, the shape and location of which is shown by the following diagram, the land in dispute being within the lines b., c., d., e., B., b., on the diagram:

The petition is in common form. The answer a general denial, and a plea of the statute of limitations. The case was tried before a jury; verdict and judgment for the plaintiff, and the defendant appeals, assigning as error instructions given and evidence admitted for plaintiff.

By deed dated the 12th day of February, 1872, William W. Jamison, executor of Samuel Jamison, deceased, by virtue of the power vested in him by the last will and testament of said deceased, conveyed the northeast quarter of section 34, township 52, range 1 east, to Thomas D. Patton, John E. Forgey, F. W. Patton and the said defendant, James H. Patton. Afterwards by deed dated March 12, 1873, the said Thomas D. Patton, John E. Forgey, F. W. Patton and defendant James H. Patton, conveyed to the plaintiff a part of said quarter section described in said deed as follows: “All of the Jamison farm that lies north of Gwinn’s creek in section 34, township 52, range 1, east, commencing at a stone corner, the same being the northwest corner of this tract. Thence south 24-52 links to a stake near Gwinn’s creek; thence north 68 1-2 degrees, east 18.46 chains to a stake; thence north 80 1-2 degrees, east 7 chains; thence north 20 1-2 degrees, east 8.30 chains to a stake;thence north 69 1-2 degrees east 14.75 chains to the center of said creek; thence north 15 degrees east 2.67 chains to a stone corner; thence north 89 degrees and 50 minutes west 41.47 chains to the place of beginning, containing 58.87 acres more or less.”

Afterwards in the years 1878 and 1881, the defendant James H. Patton acquired the southeast quarter of section 27, township 52, range 1 east, known as the Wells and Rogers land. The lands of plaintiff and defendant as respectively held by them under these three deeds are shown on the diagram in their relation to each other, and to the land in question.

(1) At the request of the plaintiff the court gave the following instructions to the jury as to the legal effect of said deeds:

“2. The court instructs the jury that if you find from the evidence in the cause that the 2.11 acre tract in controversy in this suit is a part of the northeast quarter of section 34, township 52 north, range 1 east, north of Guinn’s creek, then the legal effect of the deeds from Samuel Jamison, executor, to defendant, J. H. Patton, T. D. Patton, F. W. Patton and John E. Forgey, and from those four last named to the plaintiff, read in evidence, was to convey and carry the title to said 2.11 acre tract to the plaintiff; and the legal effect of the deeds read in evidence to defendant to the Wells land and Eogers land mentioned in evidence, was not to carry or convey title to any portion of said 2.11 acre tract to defendants.

“3. The court instructs the jury that the deed made March 12, 1873, hy defendant J. H. Patton, and F. W. Patton, Thomas D. Patton and John E. Forgey to the plaintiff, Thomas W. Patton, read in evidence, vested the legal title in plaintiff to all of the Jamison land in the northeast quarter of section 34, township 52, north, range 1 east, from Guinn’s creek to the section line on the north.

“4. The court instructs the jury that the deeds read in evidence to defendant conveying to him the Wells land and the Eogers land, did not convey to him any portion of the northeast quarter of section 34, township 52 north, range 1 east.

“5. The court instructs the jury that under and according to the deeds read in evidence in this cause, the true boundary line between the Jamison land in the northeast quarter of section 34, township 52, range 1, east, acquired by plaintiff in 1873, and the Wells land and the Eogers land mentioned in evidence on the north, was the section line.”

We fail to discover any material error in these instructions, which were confined to the legal effect of the deeds. Unquestionably the defendant by his deeds acquired no title to any land in the northeast quarter of section 34, and the only question is, whether the court committed error in holding that the section line between sections 27 and 34 was the northern line of the plaintiff’s land and the boundary line between his land and that of the defendant’s and the court committed no error in so holding, if the general description contained in the deed of March 12,1873, from the defendant and others to the plaintiff, ought to prevail over the description by metes and bounds immediately following it. That it ■ought to so prevail, is, we think, beyond the question under the well settled law in this State. [Rutherford v. Tracy, 48 Mo. 325; Thompson v. Thompson, 115 Mo. 56; Calloway v. Henderson, 130 Mo. 77; Presnell v. Headley, 141 Mo. 187; Whitaker v. Whitaker, 175 Mo. 1.] All the reasons assigned in these cases and in the authorities therein cited for subordinating the description by metes and bounds to the general description contained in the deed, obtain in this case.

First. The boundaries in the general description are fixed by governmental monuments and a natural object.

Second. The boundaries by metes and bounds are obviously erroneous. The first and last lines thereof were evidently intended to be the same lines fixed by the general description, but in endeavoring to reach one of the governmental monuments, to-wit, the section corner of the northeast corner of section 34, from which the last line was drawn, a mistake was made in the courses and distances by which they failed to reach that corner, and that line was projected from a point south of that corner to the beginning.

Third. The northern boundary of the Jamison farm in section 34, township 52, range 1 east, was the section line between sections 34 and 27, and the intention to convey all of said farm in said section north of Guinn’s creek to that line is manifest on the face of the deed.

On the authorities cited, and for these reasons, or any of them, the general description ought to prevail over the description by metes and bounds in plaintiff’s deed. In declaring the effect of the deeds, there was no error in characterizing the section line aforesaid as the true boundary line between the Jamison land in section 34, and the defendant’s land in section 27.

(2) The evidence upon the issue of adverse possession was conflicting, and that issue was submitted to the jury on approved instructions, only one of which was given for the plaintiff, and of which the only complaint made is that there was no evidence on which to base it. There is nothing in this complaint. The instruction was the usual one as to the line to which the defendant claimed, as to, which he himself testified both as to his acts, possession and intention and as this was a matter to be determined by the jury according to all the facts and circumstances in evidence in the case, it was entirely proper that this instruction should have been given.

(3) "While the defendant was being cross-examined on this subject, the plaintiff in connection therewith offered the record of defendant’s deeds to his land in section 27 in evidence. To the admission of which the defendant objected oh the ground that it was not the best evidence, it having been shown that the original deeds were in existence and no notice given to produce them, but it also having been shown by the evidence of the defendant himself that the deeds were not in the power of the plaintiff, but in the control and possession of the defendant. The objection was overruled and the deeds admitted in evidence. There was no error in this. The deeds were acknowledged and recorded as required by statute, Revised Statutes 1899, section 933, which provides that, “When ... it shall be shown to the court by the oath ... of anyone knowing the fact, that such instrument is . . . not within the power of the party wishing to use the same, the record thereof . . . may be read in evidence without further proof. ’ ’ Nor was there any error in introducing them on the defendant’s cross-examination. The order in which evidence may be introduced is largely within the discretion of the trial judge, and there was no abuse of that discretion in this instance.

Prom what has been said it is apparent that the court committed no error in refusing defendant’s instruction in the nature of a demurrer to the evidence, and as to the preponderance thereof, the verdict of the jury, approved by the trial judge, is conclusive upon this court. Finding no reversible error in the record in the trial of the case, the judgment of the circuit court will be affirmed, and it is so ordered.

All concur.