Stocker v. Green

94 Mo. 280

Opinion

Sherwood, J.

Ejectment for a strip of ground in the city of St. Louis, .in what is known as Carondelet. Answer, a general denial. The strip' of ground, which was eight feet wide, was enclosed together with a lot of ground some forty feet wide. The fence, which took in the additional eight feet, seems to have been put there, in 1859 or 1860, by mistake. Mrs. McPeak, under whom the defendant holds as tenant, bought, paid for, and received a deed for a lot forty feet in width in 1866. It does not appear that she was aware of the fence enclosing more than the forty feet until 1877, when she was so informed by one of the plaintiffs in this action; but she claims always to have claimed all of the land in the enclosure as her own. This suit was brought in 1882. The testimony certainly seems to preponderate in favor of the plaintiffs; but it cannot be said that there is absolutely no testimony on behalf of the defendant. The court was asked by plaintiffs to give a declaration of law which will accompany this opinion. Of this declaration of law it is sufficient to say that it entirely ignores the testimony introduced on behalf of the defendant. This justified its refusal. And it was not necessary for defendant, in order to avail himself of the statute of limitations, to plead that statute in order to use the bar of that statute as á defence. Under a general denial, such defence is competent. Fairbanks v. Long, 91 Mo. 628, and cas. cit.

We affirm the judgment.

All concur, except Ray,. J., absent.