author: LAMM, J.

text:
    SPRINGFIELD SOUTHWESTERN RAILWAY COMPANY, Appellant, v. JACOB SCHWEITZER and NEW PHOENIX FOUNDRY & MACHINE COMPANY.
    Division One,
    November 30, 1912.
    1. JURISDICTION: Raised by Court. Jurisdiction of the subject-matter can neither be waived nor conferred by consent of counsel; 'a court, ex mero motu, may raise the question of jurisdiction. Whether or not jurisdiction of the subject-matter exists in a concrete case is a question that springs spontaneously for inquiry at any step or stage of the suit, and may be raised at any time by the court itself:
    2. APPELLATE JURISDICTION: Condemnation Case: Title to Real Estate: Leasehold. The Supreme Court has jurisdiction of an appeal from a judgment in a condemnation case where title to real estate is involved, hut it does not have jurisdiction where the whole controversy is between a railroad company and the lessee as to the value of a lease for a term of years on the land taken, and the amount involved is less than $7500.

      3. -: -: Leasehold. A leasehold for a term of years is' not real estate. At common law it was a chattel, and the statutes have not changed it from personal property into real estate for the general purposes of the law. [Following Orchard v. Store Co., 225 Mo. 414'.] And a suit by a railroad company to condemn land, in which the entire controversy finally resolves itself into a contention between the company and a lessee of the land taken, as to the value of the lease for a term of years and the damages resulting to the lessee from breaking up an existing business thereon, does not so involve title to real .estate as to give the Supreme Court jurisdiction of the appeal.
    Appeal from Polk Circuit Court. — Hon. Argus Cox, Judge.
    TRANSFERRED TO SPRINGFIELD COURT OF APPEALS.

      Robert T. Railey and Barbour & McDavid for appellant.

      John Schmook and T. J. Murray for respondent.
   LAMM, J.

Defendant Schweitzer was the sometime owner of four parcels of real estate in the city of Springfield — for convenience numbered tracts 1, 2, 3, and 4, severally. Tract 3 alone concerns us. Defendant machine company was in possession of tract 3 as a tenant of Schweitzer. In the exercise of its delegated right of exercising the power of eminent domain, plaintiff railway company brought a condemnation proceeding in the G-reene Circuit Court against Schweitzer, as owner, to condemn all four tracts for railway purposes, and made machine company a party defendant. Such steps were ultimately taken in that case that, from a judgment in favor of machine company, plaintiff railway company appeals. .

Schweitzer does not appeal from the final judgment, nor does machine company appeal therefrom, nor does railway company appeal from that part of the judgment relating to Schweitzer. The controversy, therefore, narrows itself on appeal to one between railway company and machine company.

On December 31, 1904, Schweitzer let tract 3 te machine company for a one-year term. This lease was in writing, duly recorded, and gave an option to lessee for an extended term of three years to begin at the end of that reserved. On the day before the term ended, machine company exercised its option to extend the term for the three additional years. A writing to that effect was signed np and put of record. There was testimony to the effect (and the court so found) that railway company had notified all the parties concerned, on the day this new lease was signed, that it proposed taking all four tracts by condemnation proceedings. There was testimony from which the fact might be inferred that the extending of the lease was taking time by the forelock by putting machine company on a better footing to claim damages, but none of that testimony seems material to the question we have in mind.

Machine company was put in possession under its original lease and was running a foundry and machine shop in some ramshackle buildings on tract 3. This possession was continued into the new term and, while so in possession, on January 22, 1906, plaintiff sued to condemn all four tracts. The petition is of no consequence on the question we have in mind. It appears machine company lays no claim to any other tract except number 3; and as to that its only claim was as tenant for the unexpired part of the additional three-year term. Both defendants, on service of process, filed separate answers. Schweitzer admitted he owned all four tracts in fee simple and went on to point out that his codefendant machine company was in possession of tract 3 (describing it) as his tenant for a term of three years beginning January 1, 1906. The ease rode off below on that theory. To that end machine company filed its answer setting np its possession of tract- 3 under the same lease and, among other things, claiming damages in the sum of $5000 on the theory that “the breaking np, interference with and interruption of the business” it was conducting on the leased premises, including the injury to its business and loss of profits, amounted to that sum. On the day these answers were filed, the court made the conventional finding of facts, spreading of record conditions precedent to the right to condemn property for railway purposes, etc., and then went on to appoint and instruct three commissioners to assess damages. Presently they reported, assessing damages to the four tracts separately. "When they came to tract 3, they reported an award of compensation in the sum of $4200 (quoting) “to Jacob C. Schweitzer, the owner of said tract, and the New Phoenix Foundry and Machine Company, lessee thereof, as set forth in said petition, and as their interests may appear. . . .” Presently, on notice given of this award and report, Schweitzer and machine company excepted thereto, severally, through separate counsel. Following these exceptions, Schweitzer took down the whole award of $18,200. Subsequently, on machine company’s motion, the court ordered him to return to the clerk the $4200 allowed as compensation and damages for tract 3. It appears he obeyed this order, in part, by returning $2000. Taken by a change of venue to the Polk Circuit Court, the cause was reached for trial in 1909. At that time, on the motion of railway company, machine company was ordered to make its claim for damages more specific. This it did in the form of written amendments to its exceptions to the commissioners’ report. Thereby it claimed damages, summarized as follows: For removing its business, foundry and machine shops, comprising sand, iron, patterns, machinery, tools, stock and material, engines and implements, etc., $634.31,- damages consequent to said removal in .breakage and destruction of articles and machinery so moved, $850; in breaking up, interference with and injury to its business, loss of patronage and custom by change of location, $1000; loss of earnings during the time of removal, $1000; deprivation of the use and benefits of its leasehold interest during the unexpired term of its lease, $900; loss of its established trade, patronage and goodwill at its old stand, $500.

On the filing of these amended exceptions by machine company, Schweitzer formally withdrew his own exceptions by a pleading filed and thereby he inferentially submitted to judgment in favor of plaintiff and directly asked the court to determine the respective interests of himself and machine company in the award on tract 3, and to make an order ■ distributing the same in accordance therewith. Thereupon the cause came on for trial on said motion of Schweitzer and the remaining live exceptions of machine company.

The trial was to the court without the aid of a jury and exceptions were taken by appellant to the refusal to strike out the exceptions, to the introduction of certain testimony by machine company, to the scope of the inquiry, to the giving and refusing of instructions, and to the findings and judgment, but none of them are material until such time as the question in mind is at rest.

Attending to the findings and judgment anent tract 3, among other things the court found that the lease was of no more value than the monthly rent reserved. Further that machine company, to continue its business during the unexpired term of its lease and preserve its machinery and material from loss and destruction, was obliged to remove said machinery and material to another building, thereby necessarily incurring expense in the sum of $634.31, and suffered loss of fire brick to the amount of eighty-six dollars “and that’’ (quoting) “by reason of the fact that said lessee had its machinery so installed and in operation as aforesaid the leasehold was of special value to defendant company in excess of the ordinary rental value of the premises to the amount of $720.31.” Further that Schweitzer had withdrawn his exceptions to the report of the commissioners, etc. It was adjudged, inter alia, that he take nothing, that machine company take nothing from Schweitzer “or” (quoting) “from the value of the land independent of the special value of the leasehold,” that Schweitzer take down the $2000 theretofore deposited with the clerk, and that machine company recover said $720.31 from plaintiff.

In the foregoing we have culled from the record the facts deemed necessary to an intelligent and self-explanatory disposition of a question we have in mind, namely, our jurisdiction. We think jurisdiction is challenged on the face of this record. In that view of it, the situation seeks its determination at the outset. Thereon we make these observations:

(a) The question of jurisdiction is not sprung by counsel. One of the ancient prerogatives of counsel is, within the boundaries of the record, to make or not make points for the decision of judges. They are at liberty (within the confines of good sense) to have play of free will and do as they choose in that regard. On the other hand, some of the ancient prerogatives of the courts of all enlightened peoples are to decide only such points sprung by counsel as are deemed vital and necessary, and, in turn, a court may, ex mero motu, spring points of its own — at least on the subject of jurisdiction; for jurisdiction of the subject-matter can neither be waived nor conferred by consent of parties. Whether it exists or not in a concrete case springs spontaneously for inquiry at any step or stage of a suit at any time in any case and will be considered sua sponte. [City of Tarkio v. Clark, 186 Mo. l. c. 294.]

(b) We are of opinion we have no jurisdiction of this appeal. This, because:

(1) The Constitution gives the Supreme Court appellate jurisdiction in cases involving title to real estate. By construction we have arrived at the conclusion, announced many times, that it is not sufficient to confer jurisdiction on this court, that the title to real estate should be a subject of inquiry collaterally or by way of an incident in the suit. To confer jurisdiction, in a constitutional sense, the judgment appealed from must involve title to real estate and such title must be directly affected thereby. [Jones v. Hogan, 211 Mo. l. c. 47, and cases cited; Turner v. Morris, 222 Mo. 21; Loewenstein v. Insurance Co., 227 Mo. l. c. 134, et seq.; Kennedy v. Duncan, 224 Mo. l. c. 664; Porter v. Railroad, 175 Mo. 96.]

(2) Under the constitutional grant of power to hear and determine appeals in cases involving title to real estate, we have held that this court has jurisdiction in appeals from judgments in condemnation proceedings under the exercise of the right of eminent domain. The leading case on that head is State ex rel. v. Rombauer, 124 Mo. 598. In Railroad v. Wyatt, 223 Mo. l. c. 351-2, a line of cases are cited following the Rómbauer case. And that general doctrine may be accepted as settled.

(3) It would be loose and illogical construction, however, to hold we had jurisdiction in such casés unless our jurisdiction be referable to the constitutional grant of power to hear causes involving title to real estate. It follows that when a judgment in a condemnation proceeding comes by appeal to the Supreme Court and is of such sort that the amount involved does not confer jurisdiction and the title to real estate is not involved, our jurisdiction fails. The question up for determination, therefore, is not merely whether this is a condemnation suit. It goes deeper and is: Is the title to real estate involved as between railway- company and machine company?

(4) Machine company had a leasehold for that part of a term of three years that was unexpired when railway company appropriated the premises, and no more. The question, then, can be p.nt in a neater and more speaking form by stating it this way: Is a leasehold for a term of years real estate? If so, the .title to real estate is involved, for unquestionably the term or leasehold of machine company was sequestrated. If not, the title to real estate is not involved in a constitutional sense.

Attending to the question thus put, it must be .conceded that if a term for years is real estate, it becomes such either by force of common law or by virtue of some statute. Now, at common law a term for years created by a lease was a chattel — a chattel real to be sure, but still a chattel. At the tenant’s death such leasehold became an asset in the hands of his administrator and did not go to his heirs. At common law the term “real estate” did not include a lease. [Lenow v. Fones, 48 Ark. 557; Brover v. Fox, 36 Mich. l. C. 459; Despard v. Churchill, 53 N. Y. l. c. 199; Buhl v. Kenyon, 11 Mich. 249 ; 2 Kent’s Com. (14 Ed.), *342; Gunn v. Sinclair, 52 Mo. 327; Orchard v. Store Co., 225 Mo. l. c. 433, et seq.]

Turning now to our statutes, we have a group, of them defining the term “real estate” in connection with some particular subject-matter and for some particular purpose as, for example: Judgments (R. S. 1909, Sec. 2161); Executions (Ibid., Secs. 2193-2194); Conveyances (Ibid., Sec. 2822); Crimes and Punishments (Ibid., Sec. 4928); Dower (Ibid., Sec. 345); Construction of Statutes (Ibid., Sec. 8057), and Taxation and Revenue (Ibid., Sec. 11519).

A reproduction tere of those statutes with an analysis and interpretation thereof wonld be waste of time and mere idle and ostentations show of labor snbserving no- nsefnl pnrpose. It is enongh to say that in Orchard v. Store Co., 225 Mo. 414, snpra, rnled in Division Two, they are exhaustively reviewed, expounded and applied. The learning of that case is of the order that leaves no stone unturned, no source of information unexplored, no pains omitted. It must be held, then, that further exposition of those statutes in that regard is set at rest and should not be- put on foot and on its legs as a going concern again. We stand by that case. It was there held, as the sum of the matter, that the foregoing statutes have not changed a chattel real from personal property into real estate for the general purposes of the law. In given particulars and for certain defined purposes as, for instance, in the chapter on Conveyances, the term “real estate” is made to include a chattel real, but not for the general purposes of the administration of the law. Following the reasoning of the Orchard case and on its authority, we hold that chattels real are left for the purposes of this case, as at common law, to-wit, as personal property. Indeed, even a superficial reading of the exceptions of machine company, of the -finding of the court and of the judgment below, points to the fact that the damages machine company suffered, if any, related to personal property. The titie to real estate not being involved in that part of the omnibus judgment appealed from, we have no jurisdiction.

The cause must be transferred to the Springfield Court of Appeals. Let it be so ordered.

All concur.


source: Caselaw Access Project

author: BROWN. C. PER CURIAM.

license: Public Domain

text:
    LEE HUNTER, Appellant, v. W. H. GARANFLO.
    Division One,
    November 30, 1912.
    CORPORATIONS: Mercantile: Ultra Vires Contract: Mortgage of Real Estate. A mortgage conveying the real estate of a mercantile corporation as security for notes given in payment for shares of its own stock purchased either by the corporation itself or by its president, is ultra vires and void.
    Appeal from Ste. Genevieve Circuit Court. — Hon. Charles A. Killian, Judge.
    Affirmed.

      John A. Hope for appellant.

      W. H. Miller for respondent.
   BROWN. C.

This is a suit by appellant against tbe respondent as assignee under tbe insolvent laws of tbe State of Missouri of tbe Matbewson Mercantile Company, a Missouri business corporation, engaged in tbe business indicated by its name. Its object is to enforce tbe lien of a mortgage executed by tbe corporation February 17, 1902, in wbicb A. G. Matbew-son, Lizzie Matbewson and Mabel Matbewson join, conveying tbe real estate of tbe corporation to se'cure tbe payment to tbe plaintiff of three notes aggregating' $11,700, of tbe same date and signed by tbe same parties; and also other notes of the same parties to tbe People’s Bank, aggregating $5947.26. This bank was a private bank owned by plaintiff and one Albert Hun ter. This suit involves tbe three Hunter notes only.

Tbe mercantile company was incorporated in 1901 with a capital stock of $20,000, $10,000 of which was subscribed by the plaintiff, $9000 by A. G. Matbew-son and $1000 by bis wife, who is one of tbe makers of the notes and mortgage in question. The grantors in the mortgage, other than the corporation, are described as “all the stockholders of the said corporation.” The Hunter notes were given in payment for the $10,000 of stock' subscribed and owned by Hunter, and which was in this transaction transferred to A. Gr. Mathewson.

Although other questions of interest were raised upon the trial, the case is submitted here upon the sole question as to whether or not the mortgage constitutes a valid lien upon the real estate of the corporation for the security of the Hunter notes, so that if that question can be answered in the affirmative this judgment should be reversed and such judgment entered here as should have been entered in the trial court, or the cause remanded for further proceedings. If it be answered in the negative, the judgment should be affirmed.

The object and effect of the Constitution and laws of this State with reference to corporations seem to be to permit and encourage the investment of the money of the people in business enterprises under corporate management, without the incurring of any personal liability ■ beyond the full payment for the stock subscribed or otherwise owned by the members of the association. That this plan has been of great benefit to the State, permitting as it does the free employment of the private means of all, including the helpless classes, in active business operations, without the danger of other loss than of the capital invested, will be disputed by none. That the State should carefully safeguard such investments made with its encouragement, so that the fund which it permits to be substituted for personal liability will be carefully preserved and scrupulously devoted to that purpose, is equally evident. To this end it is provided by the Constitution that, “No corporation shall issue stock or bonds, except for money paid, labor done or property actually received” (Art. 12, Sec. 8), and that “No corporation shall engage in business other than that expressly authorized in its charter or the law under which it may have been or hereafter may be organized” (Id., Sec. 7). It is futile to say that these provisions are for the benefit of stockholders exclusively.

They are both directed against the stockholders and are primarily intended for the benefit'of the public, by securing, as far as possible, the integrity of the fund for the protection of those who may deal with it, as well as those who may become the purchasers of its stock upon the faifh of the representations made in the act of its incorporation. The withdrawal of this fund, or any part of it, by the stockholders, otherwise than under the sanction of the law in conformity with which it is created, or its application to other uses than those authorized by the laws under which the corporation exists, is a clear violation of the policy of the State as expressed in its Constitution.

In this case the plaintiff is asking the aid of the court to enable him to appropriate to himself more than half the entire property of an insolvent mercantile corporation, under a mortgage given by it to secure its note for $11,700, given him in consideration of the purchase of half its own capital stock of the par value of $10,000. This note and the mortgage securing it are signed by the stockholders owning the other half, and the evidence seems to indicate that one of' them is the real purchaser.

The laws enacted in pursuance of the constitutional provisions we have quoted, require that the fund represented by the capital stock of the business corporation shall have been provided at the time of its incorporation, and that at least one-half of it shall consist of lawful money of the United States in the cus-, tody of the persons constituting its first board of directors. [R. S. 1909, Sec. 3339.] This may only be diminished in the manner prescribed (Id., Sec. 3354), which, describes definitely the precautions which shall be taken to preserve the integrity and sufficiency of the remaining capital, and the publicity to attend the change. The condition of its capital at the time of such change must be spread upon the public records as fully as in the original organization and incorporation. If the corporation was the purchaser in this case the effect of the transaction will be not only to reduce the capital stock of the company by one-half, but to withdraw from it property greater in value than one-half its original capital, if the plaintiff’s lien "should be enforced. This would be in violation of both the letter and the spirit of the provisions of the Constitution and statutes to which we have referred, and is contrary to the sound public policy clearly indicated by these laws. An executory contract of such a character ought not to find favor in our courts. The question is not now before us as to whether a corporation may not, under some circumstances, lawfully become the owner of shares of its. own capital stock, but no such circumstance enters into this case. This gen-, eral question has been frequently presented to the courts for adjudication, both in this country and in England, and its decision has most frequently turned upon the force and effect of controlling statutory provisions in the several jurisdictions. Much learning has been collected upon the subject in a note to the Alabama case of Hall v. Henderson, 61 L. R. A. 621, as well as in the briefs of the several counsel in the principal case, which the writer has read with much interest and profit, and the general tendency of which is in accordance with the conclusion at which we have arrived; but we are controlled alone by the terms of our own Constitution and statutes which it is our peculiar duty to enforce.

The plaintiff is in no better situation if, as. indicated by some of the evidence, Mr. A. Gr. Mathewson, its president, was the purchaser of the stock for which the corporation is called upon to pay. It was forbidden by the Constitution to engage in any business not expressly authorized by the law under which it was organized, and the purchase of its own stock under the circumstances of this case was not expressly author ized by the law of its existence, but was expressly forbidden; so that the contracts in controversy would constitute an attempt to pledge the assets of the corporation in a transaction entirely beyond its corporate powers. If it be said that the power of the corporation in such a case does not depend upon its power to do the thing which is the ultimate object of the transaction, but upon its power to become a surety for its stockholder, regardless of the nature of the transaction which is the subject of the suretyship, we find it equally well settled that it has no authority to so use its credit for the benefit of others. [2 Purdy’s Beach on Private Corporations, Sec. 853.]

The mortgage which constitutes the foundation of this proceeding being ultra vires the corporation and void, it results that the judgment of the New .Madrid Circuit Court should be affirmed, and it is so adjudged.

PER CURIAM.

The foregoing opinion of BeowN, C., is adopted as the opinion of the court.

All the judges concur.


author: CRAVES, P. J.

text:
    STERLING P. HUNTER et al., Appellants, v. PEMISCOT LAND & COOPERAGE COMPANY.
    Division One,
    November 30, 1912.
    1. QUIETING TITLE: Common Source: Deed from Thomas C.: And Deed from Thomas C. and Another. Plaintiffs undertook to deraign title from Thomas C. Powell; and showed that Thomas C. Powell bought the land from the county, that by sheriff's deed the title passed to John E. Powell, and that they succeeded to John E. Powell’s title. Defendant relies on a deed from Thomas C. Powell and John H. Powell, subsequent in date to said sheriff’s deed. Eeld, that no common source of title was shown. There is a vast difference between a deed from Thomas C. Powell alone, and one fro.m Thomas C. Powell and John H..Powell.
    2. -: --: Necessary Showing. In a suit to quiet title, both sides must dereign title from a common source, or plaintiff, out of possession and claiming only through a paper title, must show a good paper title.
    3. -: -: Swamp Land: Certificate of Entry: Receiver’s Receipt: Carleton’s Abstract. A mere certificate of entry was insufficient to pass title to swamp land. A receiver’s receipt showing the lands to have been paid for would give the payor an equitable interest in the lands described therein; but Carle-ton’s abstract of registry entry in Register Book 1, page 52, is not evidence of such a receipt. [Following Nall v. Conover, 223 Mo. 1. c. 492.1
    Appeal from Pemiscot Circuit Court. — Hón. Henry C. Riley, Judge.
    Affirmed.

      J. R. Rrewer for appellants.

      Arthur L. Oliver for respondent.
   CRAVES, P. J.

Action under old section 650 to quiet title. Petition is short but in the usual form. By a supplemental abstract filed by respondent, appears a lengthy answer. This additional and supplemental abstract is not attacked by the appellants, and hence the answer therein set out must be taken as the proper pleading in the case, although it differs from the answer set out in appellant’s abstract. By the supplemental abstract, respondent challenged the correctness of appellants’ abstract.

By this answer, the defendant, now respondent, says: (1) That it is the owner of the lands in dispute and denies that plaintiffs have any title or interest therein; (2) it pleads the ten-year Statute of Limitations, averring that it and its grantors have been in the open, notorious and peaceful possession of said lands for more than ten years; (3) it invokes the thirty-year Statute of Limitations, and (4) the answer then concludes with the invocation of the ten-year Statute of Limitations from another angle in this language :

“And defendant for its other and further answer and defense herein avers that under the provisions of section 1 of an act entitled ‘An act to enlarge the jurisdiction of courts of record in- suits to determine and quiet the title to real estate,’ approved March 15, 1897, plaintiffs were at said last mentioned date empowered to institute this action; that the time in said act and in section 650 of the Revised Statutes of 1899, under and by virtue of which plaintiffs were empowered to sue, expired on March-15, 1907, and that plaintiffs did not commence this action until June T4, 1907, more than ten years after he was by said statute empowered to do so, and that by reason of said facts and of said statute plaintiff is now barred from prosecuting or maintaining this action, and defendant pleads these facts and the above Statute of Limitations, and all of them in bar of this suit. And defendant again prays judgment and for his costs in this behalf sustained.
“And defendant having fully answered now again prays judgment and let it go hence with its costs.”'

After a finding of facts, the judgment entered is in this language:

“It is therefore considered, ordered, adjudged and decreed, that the plaintiffs Sterling P. Hunter and Lelia Hunter, nor either of them, have no right, title or interest in and to the lands in controversy, and that the defendants, so far as plaintiffs are concerned, have the title in and to said land in fee; that plaintiffs take nothing by their suit herein, and that defendants recover of and from plaintiffs their costs expended herein and have execution therefor.”

From such adverse judgment, the plaintiffs have appealed.

From the pleadings it will be observed that there is no assumed or agreed common source of title. Nor does the record, other than the pleadings, show an agreed or assumed common source of title. Neither does the record show a proved common source of title. Going to the evidence, the plaintiffs by a record title showing undertake to dereign title through one Thomas C. Powell. They attempt to show that Thomas C. Powell bought the land from Pemiscot county and that by sheriff’s deed it passed to John E. Powell’and that they succeeded to John E. Powell’s title. Defendant relies upon a deed from Thomas C. Powell and John H. Powell, so far as they rely at all upon a record title.. This deed, however, was subsequent in date to the alleged sheriff’s deed mentioned supra. Had defendant undertaken to dereign title through Thomas C. Powell alone, and offered in evidence such an instrument it might be well said that by the proof a common source of title was shown, but such is not this case. There is a vast difference between a deed from Thomas 0. Powell alone, and one from Thomas C. Powell and John H. Powell.

We had a very similar question up in the case of Nall v. Conover, 223 Mo. l. c. 492. In that case there was a title bond by Thomas C. Powell and John H. Powell shown, and we held under the facts and pleadings in that case that we could not proceed with the case upon the theory of a common source'of title. The reasoning there meets the situation here, and the contention of the plaintiffs to the effect that there was shown a common source of title in Thomas C. Powell, must be ruled against them on the strength of the Conover case, supra.

With this question to the side, there is hut little left to the case. Plaintiffs were thereby forced to show a good paper title, for they claimed title in no other way. [Nall v. Conover, supra.] If there was a link out of their title, the judgment must he against them.

These lands were swamp lands and the law relating thereto was fully reviewed in the Nall-Conover case. We there held that a mere certificate of entry was insufficient to pass any title. We then said and now say that if there was a receiver’s receipt in evidence showing that such land had been paid for, it would give the payor an equitable interest in the lands described in such receipt. But this holding cannot avail the plaintiffs in this ease. The only thing offered in evidence to show the transfer of the title to Thomas C. Powell from Pemiscot county is Carleton’s abstract of a registry entry in Register’s Book 1, page 52. This record we held in the Nall-Conover case was not a public record required by law to be kept, and for that reason Carleton’s abstract thereof did not make it evidence under the Act of 1901. We further held that even if it was properly admitted as evidence, it would show no title in Thomas C. Powell. The whole matter is fully discussed in the Nall-Conover case, supra, and we shall not go further. Under the ruling made in that case, and in the subsequent case of Whitman v. Griesing, 224 Mo. l. c. 615, the plaintiffs in this case failed to make out a case. Other questions urged need not be discussed. The Nall-Conover case, supra, should be read in connection with this opinion. .

The judgment nisi is affirmed.

All concur.


author: WOODSON, J.

text:
    WILLIAM R. HILGEDICK, Appellant, v. GUSTAVE A. GRUEBBEL.
    Division One,
    November 30, 1912.
    1. EJECTMENT: Evidence: Agreed Boundary Line: Correct Location. Where the adjoining owners of land agreed upon a boundary. line, it is immaterial whether that line as establishd by the surveyor was correctly located. But where it is disputed that there was an agreed lino, testimony to show that the fence, which a witness testifies was built in pursuance of the agreement, was crooked and varied in and out, is competent to show there was no agreed line.
    2. -: No Agreed Boundary Line: No Adverse Possession. Where there was no agreed boundary line and he who was in possession of the small strip did not claim adversely to the title-owner, the finding should be for such owner.
    3. —;-:• Survey: Fence: For Purposes of Convenience: Instruction. Where a survey.was made establishing a boundary line between two farms, and the only issue in the case is whether the fence thereafter built was placed on that boundary line, and there is no issue in the -case of the purpose for which’the . fence was built, an instruction telling.the jury that if" they find that such fence was built for “the purpose of convenience,” etc., is not error, nor misleading, since the words could have meant no other purpose than the on§ for which landfe are usually fenced, namely, to inclose them.
    4. -: Verdict of Jury: Conclusive. Where the contest in ejectment for two small strips of land was submitted to the jury in proper instructions, and there was substantial'evidence to support the theory of either side, the Supreme Court will affirm the judgment. ■
    Appeal from Warren Circuit Court. — Hon. James D. Barnett, Judge.
    Abbthmed.

      Kurt Von Reppert and Henry Higginbotham for appellant.
    (1) Adjoining owners- of land may agree upon the division line between their premises and each owns up to the agreed line as fully as if it were a natural boundary or their respective deeds called for it. If the agreement is proved according to the rules of law governing it. and if possession has been held nnder snch agreement for the period prescribed by the statutes, the law will not suffer it. to be disturbed, even though there was no agreement in the beginning. Brummell v. Harris, 148 Mo. 430; Barnes v. Allison, 166 Mo. 96; Hedges v. Pollard, 149 Mo. 216; Atchison v. P'ease, 96 Mo. 566; Jacobs v. Moseley, 91 Mo. 457; Kreidler v. Milner, 99 Mo, 145; Shadd v. Sharp, 95 Mo. 573; Reynolds v. Hood, 209 Mo. 611. Possession and use up to a boundary line are evidence that 'there was an agreement to establish the line not only to corroborate other evidence of such agreement, but even if there be no snch evidence. It is only, necessary that it continue long enough to indicate that the adjacent landowners knew it. Brummell v. Harris, 148 Mo. 430; Stumpe v. Kopp, 201 Mo; 423; Hedges v. P'ollard, 149 Mo. 226; Coleman v. Drane, 116 Mo. 387; Kreidler v. Milner, 99 Mo. 145; Jacobs v. Mosely, 81 Mo. 462; Shadd v. Sharp,. 95 Mo. 578; Blair v. Smith, 16 Mo. 273; Turner v. Baker, 64 Mo. 218; Ernstling v. Gleason, 137 Mo. 594. (2) "Where one of two joint land proprietors takes, and holds possession up to a fence which he supposes is on the true line, claiming to the fence, his possession is adverse as to all lands within his inclosure. In such case it makes no difference that he was mistaken as to the location of the true line, nor does it make any difference that he did not intend to invade his. neighbor’s rights. The fact that he claims to the fence, not simply to -the line when asr' certained, is sufficient and will constitute disseisin. The burden of bringing the case within the exceptions, to the rule of a possession for the period of limitation not being adverse between adjoining owners. because always held subject to a subsequent ascertainment of the true line is on the party claiming that the possession was not adverse, and such, party must clearly show the existence of snch qualified claim to possession at some time prior to a ripening of title by limitation. Hedges v. Pollard, 149 Mo. 224; Battner v. Baker, 108 Mo. 311; Davis v. Braswell, 185 Mo. 501. Conflicting testimony and vague or uncertain conversations, occurring ' after the ■ rights of the party in possession had been fixed by possession under Statutes of Limitation, are not sufficient to reduce the character of the possession or divest rights so acquired. Hedges v. Pollard, 149 Mo. • 216; Lemmons v. McKinley, 162 Mo. 531; Stumpe v. Kopp, 201 Mo. 423; Davis v. Braswell, 185 Mo. 576; Hanlon v. McManus, 100 Mo. 124; Cole v. Parker, 70 Mo. 377; Turner v. Baker, 64 Mo. 218. (3) The evidence elicited on cross-examination by respondent of witness Ulfers with reference to the manner of the survey made by Biglow, is wholly immaterial and prejudicial to the appellant, for the reason that it is wholly immaterial whether Biglow surveyed the boundary line between the .respective grantors of appellant and respondent correctly and located the correct or true division line between their respective adjoining lands on .the question as to whether or not there was a prior- agreement between Hyronimous Ul-fers and Rudolph Dennert, Sr., grantors, respectively, of appellant and respondent, to abide by the line established by the survey of Bigelow. (4) There is no evidence that Hyronimous Ulfers and Rudolph Den-nert, Sr., erected the old fence in controversy for the purpose of their convenience only. It is axiomatic ■that instructions should only be given when there is evidence in the record upon which to base. them. Dee v. Nachbar, 207 Mo. 680. (5) The verdict of the jury is the result of bias, passion, prejudice or mistake on their part. The jury disregarded the instructions of the court and the uncontradicted evidence in the case. Spobn y. Railroad, 87 Mo. 74; May y. Crawford, 150 Mo. 505; Lenick v. Railroad, 118 Mo. App, 611.

      Emil Boehrig and Jesse E. Schaper for respondent.
   WOODSON, J.

This is a snit in ejectment instituted in tbe circuit court of Warren county, by tbe plaintiff against tbe defendant, to recover tbe possession of two small Y-shaped tracts of land in United States Survey numbered 758, situate in township forty-five, range one, Warren county, Missouri, particularly described in tbe petition. Said tracts of land are situate along tbe boundary line separating tbe lands of plaintiff and defendant.

Tbe petition is in conventional form, and tbe answer is a general denial. A trial was bad before tbe court and jury, which resulted in a verdict and judgment for the defendant, and tbe plaintiff duly appealed to this court. Tbe respondent is not represented here, and tbe record presented to this court is so poorly gotten up and so indefinite that it is almost impossible for us to find beads or tails of tbe case.

Tbe appellant does not claim that be has tbe paper title to tbe land in controversy, but bases his right to a recovery, first, upon an agreed boundary line established by tbe grantors of both appellant and respondent in tbe year 1879; and, second adverse possession under color of title. Tbe respondent interposed three defenses: First; that be bad tbe paper title to tbe land in controversy; second, a denial of adverse possession; and, third, a denial of tbe agreed boundary line.

In order to establish tbe appellant’s case be. offered as a witness J. A. Ulfers, who testified in substance that be was sixty-eight years of age; that be was reared in Warren county, and lived from 1847 to 1884 on land of appellant, with bis father, Hyroni-mous Ulfers, who died about the year 1895; that he was familiar with the tract of land immediately east of appellant’s; that ever since 1870 Rudolph Dennert, Sr., owned and occupied the latter tract, which now belongs to the appellant; that Rudolph Dennert, Sr., died about the year 1886; that in.the year 1878 or 1879, Hyronimous Ulfers, the father of the witness, and Rudolph Dennert, Sr., wishing to build a fence between their farms, and not knowing the exact boundary line, agreed to have a survey made thereof and agreed upon James Biglow, a surveyor of St. Charles county, to make the survey, and agreed to build the fence on the line to. be established by the Biglow survey; that the witness was present and assisted in making the survey, carried the flag, and Dennert’s son carried one end of the chain; that the survey was made and the stakes driven and corners set as the surveyor went along, and that when he had gone around the tracts, the survey was satisfactory to both parties; that they then built a fence along the line established by the survey; that the witness built the fence and Dennert, Sr., furnished part of the material, and his father furnished the remainder; that Dennert and his son were present when the survey was made; -that the land on each side of the line was cultivated by Ulfers and Den-nert respectively until 1884, when the witness left the place. That the fence remained there all the -time while he lived there; that after leaving the house of his father he visited him off and on until 1893 or 1894, when his father moved from there. That during all the time while he lived there and during all his visits he never noticed any change in the line or the- fence built thereon.. .•

That after his father left the place the appellant moved on .it,, and has occupied it ever since. That he saw the premises just previous to the trial in April, 1909, and he noticed that most of the. old fence .had been tom down, and that a new wire fence had been placed there, some ten feet over on the land formerly occupied by his father. That the north end of the old fence was still standing. That the old fence was a straight worm fence built of rails, and the corners of the fence were placed on his father’s land by agreement between him and Dennert. That when he was last there he saw the marks of the old fence on the ground and new stakes put there by a surveyor in the line of the old fence.

That he did not know who called Biglow to make the survey, whether it was his father or Dennert. That Biglow had some deeds there while making the survey. That the survey he made began on the north end at the northeast corner of his father’s land and ran down to a rock in the creek. He then went back and surveyed this fraction where the corner is supposed to be. Biglow in surveying the property ran around the fraction and surveyed the line in. dispute, that is, the fraction of three acres and something sold out of the original Ulfers’ place.

He also testified that his father and Dennert agreed that the line surveyed by Biglow should be their dividing line. The agreement was not in writing. That there was an old fence there prior to and at the time when this agreement was made; “it.was there when we moved on the place. ” ,

There were a number of other witnesses introduced by appellant, whose testimony corroborated much of the testimony of J. A. Ulfers.

The respondent in order to sustain the defense, testified in his own behalf, substantially as follows:

That he purchased the Rudolph Dennert place in the year 1903 and received a warranty deed, and went into possession of it on July 1, 1903. That at the time he moved there he found an old rail fence on the western boundary of the land. That about a month after-wards he met the appellant and the latter said to him, “I understand yon want your land surveyed.” “Why,” I says, “I haven’t thought about it yet.” I says, “I don’t know; ain’t the line all right, the corners? Do you know the lines or the corners?” He said, “No, sir, I don’t know no corners on my land.” I told him, “I don’t know the lines because I ain’t acquainted. I just bought it and I am sort of new in this country, and if you don’t know the line and I don’t know the line, I think it would be right well to survey it.” He said, “I wish you would survey it, because I would like to find out where the true line is.” “Well,” I says, “If that is your intention I am satisfied with that.”

Proceeding, he testified further, that they dropped the subject there; and that about two weeks later they met again and appellant asked the witness if he had engaged Wehmeyer to survey his land. The answer was no. He then said, “I wish you would have' the land surveyed so that we can find the true line between your land and mine.” Witness replied-that he would get Mr. Wehmeyer and let him survey the land and run the line between them. That Wehmeyer is the county surveyor.

That he requested all the parties who were interested in the lands to bring their deed so the surveyor would know how to survey the lands.

That he wrote to Wehmeyer some time in October, 1903, to come up and make the survey; that he promised to come in November, but did not do so until March, 1904. That when the surveyor came, they went to the home of appellant and requested him to come over the next day to make the survey; that they got their chainmen, and the next morning appellant and the other landowners further up the line appeared. That Wehmeyer surveyed the lands of both the witness and that of the appellant; also that of Peters and Meyer. That he surveyed all of those places, ran entirely around them. That he had appellant’s deed there and nsed it in making his survey.

That he saw the lines run, and staked off; that he placed his new wire fence on the line established by the surveyor between his land and that of appellant.

That after the surveys were completed, he and appellant agreed to build a new fence along the line established between them; that the'witness was to pay for sawing the lumber and making the posts for the entire fence, and appellant was to haul the lumber and posts and build the entire fence. That in pursuance to that agreement appellant hauled the logs to the sawmill of Mr. Mutert, and witness hired Fritz Garde to split the posts; that Garde split one hundred' and fifty posts on his land and he paid him for'his work; that he paid Mr. Mutert for sawing the' lumber and had the receipts from both him and Garde. That appellant tore down the north end of'the old fence.

That there'were two small tracts of land in controversy; the north one was about one hundred and twenty feet long and six or eight feet wide' at one end and runs to a point at the other, while the south tract was about three hundred feet long and twelve feet wide at one end and ran' to a point at the other end:

That the old rail fence which was there when he purchased'the place was crooked, that is, it did not run on a straight line, it had bends and was' very crooked. That this old fence' disappeared in the' latter part of March, 190b, and that he did not know'who moved it. That this was almost two years after apu pellant agreed to build the new fence. '

That appellant seemed to be pleased with'the surveys when first made, but when- he saw where the fence was to be built he seemed to get "out of humor' and would say but little. Appellant never built the fence he agreed to

• That they had several conversations abont it and appellant suggested additional propositions looking to a settlement of the matter, hnt witness would not agree to that without the agreement should be reduced to writing and that each party should execute-a bond in the sum of $1000, conditioned that each should abide by the agreement.

That on May 17, 1906, in the presence of Mr.' Peters and Mr. Knipker, he said to appellant that he would agree to abide by the survey madé by “any competent surveyor of St. Charles, Montgomery or Franklin counties.” “Yes sir; county surveyor o.r government surveyor, if there was one, it would suit me better, and I had to be satisfied with the surveyor and that it had to be in writing and a thousand dollar bond on top of it.” That the appellant refused this proposition and the negotiations there stopped.

That the posts he hired Garde to split disappeared also and that he does not know what became of them.

That after appellant refused to build the fence as per agreement, he, the witness, had the wire fence, mentioned in the evidence, built along the line established by the Wehmeyer survey, which consisted of two smooth galvanized wires, stretched along on posts set right on the line; that this fence of his has been cut to pieces about a dozen times.

That the new wire fence was on the line established by the Wehmeyer survey and was perfectly straight, but the old rail fence was not; it was very crooked and varied from the line of the wire fence. At the north end the wire fence runs right into the middle of the old rail fence, and as you go south it leaves the old fence and the space' between widens most all the way down to the south end where they are ten or twelve feet apart. However, at oné point near the center of the wire fence, the old rail fence.almost toudhes the wire fence.

That he built the wire fence on Jnly 2 and 3, 1906. Appellant came over after his cows which he had pnt up, and saw him building the wire fence and asked if he was putting it on the line and when informed that he was, the appellant said that was all that he wanted, and turned away and drove his cows home.

That he had only one survey made and that was on March 3 and 4, 1904, by Mr. Wehmeyer. That he did not have another agreement with the appellant to. build the fence in the year 1906, but offered to enter into another agreement in that regard about that time, but appellant declined to enter into it.

That at the time Wehmeyer made the surveys for them, they were on the best of terms; both he and Wehmeyer dined and stayed with appellant while the survey was being made, at the request' of the latter.

That appellant set some of the posts in pursuance of agreement to build the party fence, but subsequently he or someone else removed them; that appellant never completed the fence, so in 1906 the witness built the wire fence before mentioned. That at this time the feeling between him and appellant was not friendly, that he did not know what offended the latter, unless he became so when he saw where the new fence would run.

On re-direct - examination witness' testified that the original agreement was that he was to furnish the material for the party fence, and appellant was to furnish the labor necessary to construct it on the line .of the Wehmeyer survey, and that there was never any modification of that agreement made by them. That he simply waited for appellant to build the fence, and when he saw appellant was not going to do so,' he built the wire fence on the line where appellant had agreed to build it, and that appellant then instituted this suit. That he did not use. the posts made by Garde in building the wire fence, because he did not want to haul them. Later they disappeared, but be did not know wbat became of them.

On recross-examination witness testified that appellant came to Mm three or four different times and requested him to have the surveys made, and maybe of tener, before he wrote to Mr. Wehmeyer to come make them.

John Mutert, the sawmill man, Fritz Garde, the .man who split the posts, William Peters and Frank Meyer, two of the adjoining landowners, William Riske, John D. Waller, farmers, Dr. A. 0. Bentnick, A. H. Wehmeyer, county surveyor, and many others, testified on behalf of respondent, and fully corroborated respondent’s testimony in almost every particular.

Both appellant and respondent introduced many deeds, plats and other exhibits in evidence.

The plats are poorly drawn and incomplete, and some of them give no corners or directions whatever. For those -reasons, we have been compelled to largely put aside the plats and gather the facts of the case, as best we can, from the oral testimony of the witnesses and the deeds introduced in evidence.

The deeds show that the legal paper title to the land in controversy is in the respondent; in fact, that is not disputed by counsel for appellant.

I. Counsel for appellant, at some length, state, at the outset of their brief, and cite in support thereof many authorities, certain academic propositions of law, which we need not here stop to consider.

Counsel for appellant first assign as error tho action of the trial court in admitting in evidence, on cross-examination, certain parts of the testimony of J. A. Ulfers, one of the witnesses offered by appellant. That testimony was elicited for the purpose of showing that the survey made by Biglow, establishing the boundary line, as contended for by counsel for appellant, upon 'which the old rail fence between Hyron-imous Ulfers’ and Rudolph Dennert’s land was constructed, was incorrect, and did not properly establish or accurately locate that true line between them. Counsel contend that said testimony was irrelevant and immaterial for the reason that, if Ulfers and Dennert agreed upon the line upon Which the old fence was constructed, as the true line, then it was wholly immaterial whether that line was correctly located by Big-low or not. Many authorities are cited in support of that contention, and because of its soundness, we presume, it is not controverted by counsel for respondent. However, counsel for him insist that said testimony of Ulfers was admissible in this case, notwithstanding the soundness of the legal proposition previously stated.

Their position is that, if it be conceded that Ulfers and Dennert agreed upon a fixed boundary line between them, then appellant’s contention would be sound, but contending, as counsel for respondent do, that no such agreement was ever entered into, a question of fact is thereby presented to the jury for determination, and that any evidence which tends to show that no such agreement was ever made, or which contradicts the testimony of J. A. Ulfers upon that question, is admissible in evidence.

That being true, clearly the testimony complained of was admissible for both of said purposes, especially in the light of the facts disclosed by this record, namely:

(a) That he, J. A. Ulfers, was the only human being on earth who ever heard of that agreement and was the only witness who testified that any such an agreement was ever entered into between them, notwithstanding the fact that young Dennert was living and assisted in making the Biglow survey, and presumably would know as much about the agreement as young Ulfers did.

(b) That the appellant himself, the purchaser of the land from Hyronimous Ulfers, never heard, of said agreement. His words and whole conduct for years regarding the Wehmeyer survey, and the agreement between him and the respondent to build a party fence upon the lines established by that survey, show conclusively-that he never heard of any such agreement.

Common prudence would have suggested to appellant, before or at the time he purchased the land from Ulfers, that he should have made inquiry of the latter as to the location of the boundary lines thereof, and common knowledge and experience- teach us that such inquiry is usually, if not universally, made, by all purchasers of land, when present, as the appellant was in this case. Presumably, for this reason, if for none other, he was more likely than anyone else to have heard-of the agreement, if in fact it was ever entered into, and the fact of his having never-heard of it, is evidence that it never existed.

(c) Practically, the uncontradieted evidence shows that the old rail fence which witness Ulfers said was located upon the Biglow survey was- not straight, but was crooked, meandering in and out, and at one point near the middle thereof, the fence came almost to the line established by the Wehmeyer survey-, which all the evidence shows was a straight line, and-from there meandered along an irregular line north and south, varying in places, in and out, from a straight line many feet, which, if we correctly understand the record and plats introduced in evidence, caused the narrow strips of land involved in this controversy to be located upon the' appellant’s side of the old rail fence.- ,

• - This evidence tends- strongly to show that the old rail fence was not put upon the line of the Biglow-sur-vey or of any other survey, for that-matter, for-the reason that the witness Ulfers, himself, testified that the Biglow survey was a straight line, which presumably is true, for a surveyor generally runs a straight line and not a crooked one like a snake, even though it should vary from the true course. Therefore, if the Biglow survey located a straight line, as Ulfers testified it did, then his testimony to the effect that the old rail fence was built upon that line is- unquestionably untrue, that is, provided the testimony of many of the other witnesses who testified that the fence was crooked, is true, but be that as it may, that was a question for the jury to determine, and the evidence complained of was admissible for the purpose of showing that fact, and to contradict said witness.

It necessarily follows that, if the Biglow survey located a straight line between the farms of Hyroni-mous Ulfers and Rudolph Dennert and that the old rail fence mentioned was crooked, meandering in and out many feet in places, and not straight, then the testimony of J. A. Ulfers, to the effect that they agreed upon the Biglow survey as the true line between them, and that in pursuance of said agreement they built said fence upon that line, is untrue. At any rate, that evidence was- admissible in evidence, tending to prove that no such agreement was ever entered into.

It also follows from the foregoing facts, if the jury found them to be facts, that there, was no agreement made and entered into by and between said Ul-fers and Dennert fixing a boundary line between them, or that they built a fence upon that line for the purposes claimed by appellant.

On behalf of and at the request of counsel for appellant, the court instructed the jury as follows,:

“1. The court instructs the jury that if they believe and find from the evidence that Rudolph Dennert, while owner of the land east of the line in controversy, ábout the year 1878, agreed with Hyronimous Ulfers on the line run by Biglow mentioned in the evidence as the division line between their respective tracts of land, and that afterwards the said Dennert and the said Ulfers built their division fence on snch division line so agreed upon, and that the fence so built is the old fence mentioned in evidence, and if the jury further believe and find from the evidence that plaintiff and said Ulfers, under whom said plaintiff claims, have ever since occupied the land on their side of such division line and up to the same to the time of the entry, if any, of the defendant on the west side of- said division line and said fence, then it is wholly immaterial where the survey would put the line; and the said Rudolph Dennert and all ■ persons deriving title to the land east of said division line and fence under him (said Dennert),'including the defendant G-ruebbel, are bound by said agreed division line and fence and are not entitled to any land west of said division line and old fence. And if the' jury further believe and find from the evidence that the defendant at the time of the institution of this suit, September, 1908, was and is now in possession of said land sued for, their verdict must be for the plaintiff for the possession of the land sued for and described in the evidence.
“2.1 If-the jury believe and find from the evidence that- the plaintiff Wm. R. Hilgedick and those under whom he claims, who in this case is Hyronimous Ulfers, have. been in the open, notorious, peaceable; continuous, uninterrupted, exclusive and adverse possession of the strips of land in controversy and up to the old fence mentioned in-the evidence for a period of ten years preceding the entry, if any,-of the defendant on said land, and that the defendant at the time of the institution, of this suit was and is not in possession of said land, their verdict must be for the plaintiff for the possession of said land.-
“3. The court instructs the jury that the plaintiff is not bound to prove both an agreed division line and adverse possession for ten years, as defined by the other instructions herein, in order to entitle plaintiff to recover herein. But the plaintiff may recover on proof of either such agreed division line or such adverse possession.
“4. The court instructs the jury that if they believe and find from the evidence that the plaintiff or the plaintiff and his grantor, Hyronimous Ulfers, for a period of ten years preceding and up to the time when the defendant entered into the possession of the land sued for have been continuously in the actual possession of said land up to the old fence mentioned in the evidence, claiming the land up to said old fence as their own, then such possession is adverse possession within the meaning of these instructions, unless the jury further believe and find from the evidence that the- plaintiff or his grantor Ulfers did not claim the land up to said old fence unconditionally as the true division line. In the event you find from the evidence that the plaintiff or his grantor Ulfers did claim the land up to the said old fence unconditionally as the true division line as hereinbefore explained, it mates no difference that the plaintiff or said Ulfers was mistaken as to the location of the true division line nor that said old fence line may not have been the true division line, nor that plaintiff or the said Ulfers may not have intended to take any of the land east of the true division line.
“5. The court instructs the jury that if they believe and find from the evidence that Rudolph Den-nert, while owner of the land east of the line in controversy, and Hyronimous Ulfers, while owner of the land west of the line in controversy, did establish an agreed division line between their respective tracts of land, and that afterwards the said Ulfers and the said Dennert built their division fence on such division line so agreed upon, and if the jury further believe and find from the evidence that said Ulfers thereafter occupied the land on his side of such agreed division line and up to the fence so built for the period of ten years and that said fence is the old fence mentioned in tlie evidence and that said Ulfers .claimed to own said land np to such division line, then the said Ulfers owned the land on the west of and np to said division line- and old fence as fully as if his deed called for and described the said line and old fence as the western boundary line of his said land and in such case the deed to G-ruebbel, the defendant, could not and did not convey to said Gruebbel any of the land west of such agreed division line and old fence.”

These instructions presented the law of the case to the jury in as favorable a light as the appellant was-entitled to have it, and of course they do not complain of the action of the court in giving them.

The converse of' the legal propositions stated in the foregoing instructions were submitted to the jury, in instructions ashed by counsel for respondent.

The principle objection urged against respondent’s instructions is that there was no evidence upon which to predicate them.

This objection is not well grounded as previously shown.

We have set out at some length the substance of the testimony for the purpose of showing that there was evidence tending to show that there was no agreement made and entered into by and between Ulfers and Dennert fixing the boundary line between their tracts of land, etc., and also tending to show that neither Dennert nor the appellant claimed adversely to Ulfers and the respondent.'

We therefore rule this point against the appellant.

In addition to giving the instructions for respondent before mentioned, negativing the propositions submitted to the jury by instructions on behalf of appellant, counsel requested and the court gave the following instruction for respondent, viz.:

“The court instructs thé; jury that if they believe and find from the evidence that one Ulfers and one Denn'ert' were the adjoining owners of the lands in dispute in this case about the year 1879, and that they about that time procured one Surveyor Biglow to run a line between said adjoining tracts of land for the purpose of erecting a fence for their convenience between their said tracts of land, and that on said Big-low line a rail fence was erected, then the line marked by the rail fence will not be regarded by the jury as establishing an agreed boundary line between their said tracts of land, unless you further find from the evidence that said Ulfers and Dennert agreed that said line marked by said rail fence should be thereafter the boundary line between their land and that each of' thém thereafter claimed to own to the said line marked by the said rail fence and no further. ’ ’

Counsel for appellant complain of this instruction for the’reason stated, that there was no evidence introduced to show that Ulfers and Dennert erected the old rail “fence for their convenience.”

It is true there was no evidence introduced for the purpose of showing that the fence was erected for the convenience of the parties, nor for any other purpose for that matter, but the supposition is that it, as well as all other fences, are erected for the use and convenience of the parties who build them. ' Nor was there any evidence tending to show that the fence was erected for the purpose of establishing the boundary line between Ulfers and Dennert. But the evidence for the appellant tended to show the line was established by the Biglow survey and that Ulfers and Dennert agreed upon that line as- the true dividing line, and in pursuance to that agreement the fence was erected thereupon, not for the purpose of establishing the line (for that had already been done by the survey and the stakes and corners had been previously set by the surveyor), but for the uses and purposes that all farm fences are erected, namely, to inclose the premises, and to 'exclude therefrom man and beast, and clearly this is the sense in which the word convenience in the instruction was used.

No other meaning could have been drawn from the word, nor could it have misled the jury or injured the appellant in the least, for the simple reason that the purpose for which the fence was' erected was not an issue in the case in any sense of the word.

There are other minor questions presented and briefed by counsel, and after a careful consideration of them, we are of the opinion that none of them cut so deep into the merits of the case as to change the result before indicated. We will not, therefore, prolong this opinion by discussing them.

There was sufficient evidence introduced to justify the court’s action in submitting the case to the jury upon the theory of the-respective parties, and the jury under proper instructions having found tie issues for the respondent, we are of the opinion that the judgment should be affirmed.

It is so ordered.

All concur.


text:
    AMANDA J. WRIGHT v. ARCH GROOM et al., Appellants.
    Division One,
    November 30, 1912.
    1. EJECTMENT: Power of Court to Order Survey. After issue joined on the original petition in ejectment, the court has authority under Secs. 11299 and 11305, R. S. 1909, upon request, to order a survey of the tract in suit; and as the order was directed to the county surveyor, it was not vitiated hy the fact that it was directed to a hoard of three, surveyors, namely, die surveyor of the county in which the land lies and the sur- • veyors of two other counties.
    2. -: Amendment of Petition: Departure: Variance in Description. It was not error to permit plaintiff, after issue joined in ejectment for a small tract of ground claimed hy limitations, and after a survey had been made in pursuance to an order of court, to file, of her own motion, an amended petition, in which the land is described according to the new survey, it being the same land sued for in the first petition, though, because of uncertainty as to where the dividing line between two sections was, it was described differently, and the area of the second description somewhat exceeds the area of the first. There was no departure by such amendment.
    3. -: -: When Allowable. Amendments are peculiarly within the sound discretion of the court, and are essential incidents' of the exercise of judicial power, both at common law and under the statute, which is in aid and declarative of the common law. They are favored by courts, because they avoid delay in joining issue on the merits and tend to bring litigated controversies to an end; and the exercise by the court of its discretion to permit an amendment to a pleading, will not be interfered with on appeal unless palpably abused by grafting a separate and independent suit on the stem of the original proceeding.
    Appeal from Shannon Circuit Court — How. W. N. Evans, Judge.
    Aiturmed.

      A, H. Livingston for appellants.
    The test in this State as to whether an amended petition is a new cause of action and departure from the original is whether the same evidence will support both petitions, and second, whether the same measure of damages will apply to both. It is hardly conceivable that the title to a tract of land in one section would be exactly the same as the title to a tract of land in another section. Different proof would be .required in the separate actions. This is an attempt to tack on to the first suit an entirely new suit. ■ There is not one part of the land described in the original petition covered by the description in; the amended petition Boss v. Cleveland Co., 162 Mo. 317; Prehm v. Porter, 165 Mo. 115; Barnham v. Tillery, 85 Mo. App. 453; Scovill v. Grlasner, 79 Mo. 449; Bernard v. Mott, 89 Mo. App. 403.

      Swain & Sizemore, Shuck & Cunningham, and L. 0. Neider for respondent.
    There are two tests by which to determine whether a second petition is an amendment or a substitution of a new cause of action. This is whether the same evidence will support both petitions, and, second, whether the same measure of damages will apply to both. Liese v. Meyer, 143 Mo. 547; Santer v. Leverage, 103 Mo. .621; Scoville v. Grlassner, 79 Mo. 449. While it is true that the lands sued for in the original petition was land in section 15 and the amendment shows it to be in section 22, yet it is the very same land claimed by the plaintiff and held by the defendant. The same testimony .required to prove the facts under the original petition, would be required to prove the facts stated in the amended petition.
   LAMM, J.

Ejectment in the Shannon Circuit Court. Defendants (claiming a departure) challenge an amended petition by motion to strike out. Unsuccessful, they refuse to appear further, stand on their motion, suffer judgment, duly except and appeal. The departure is said to arise in an amendment changing the description of the land. Monthly rents and profits, damages, date of ouster and parties, are the same in both petitions. The change in description appears in the following excerpts, one from the first and the other from the last petition:'

Original Petition.
“Beginning at the southeast corner of section 15 in township 27, range 6 west, running thence north four rods; thence west eighty rods; thence south four rods; thence east to the place of beginning, containing two acres, more or less; the same being a part of the southeast quarter of the southeast quarter of section 15, in township 27 north, range 6 west.”
Amended Petition.
“Beginning at- the northeast corner of section twenty-two, in township twenty-seven north, range six west, running thence south one hundred feet; thence west eighty
rods; thence north ninety-two feet; thence east eighty rods to the place of beginning, containing three acres more or less; the same being a part of the northeast quarter of section twenty-two, in township twenty-seven north, range six west.”

Comparison shows that the township and range are the same, and, since section twenty-two always lies adjoining and south of section fifteen in the same township and range, it follows that the northeast corner of twenty-two coincides with the southeast corner of fifteen; therefore, though the verbiage differs, the point of beginning in each description is the same. It will be observed, further, that the east and west distances, eighty rods, áre the same; hence, since the beginning point is the same, the north line of the second description in point of fact coincides with the south line of the first description. Moreover, it is apparent that the description in the amended petition is of land lying immediately south of that described in the first, the amendment covering a trifle more land.

An additional abstract of the record proper furnished by respondent shows that at appellants’ instance and request, after issue joined on the first petition (and before the filing of the amended petition), the court ordered a survey of the tract in dispute and to that end continued the cause. As a sensible convenience in determining disputed land titles, such request and order are within a statutory power (R. S. 1909, Sec. 11299; Ibid., Sec. 11305); and, as the court ordered the survey to be made by the county surveyor, presumably tbe order was made under section 11299. Out of excess of abundant caution tbe order was directed to a board of three, to-wit, the surveyors of Dent, Oregon and Shannon counties. This excess of caution did not vitiate the order; for the maxim is: Abundant caution injures no man. Two of them (the surveyors of Oregon and Shannon) served; and the record shows they made return to the order, filing a plat of their survey, which plat is submitted to us. This plat shows that the trouble in description had its root in where the true line of division between said sections fifteen and twenty-two actually lay and was marked on the earth’s surface. It seems that by a former survey that line was located so far south of where the county surveyors, acting under the order of the court, located it that a description of the disputed tract at the time the suit was brought put it on the south side of the southeast quarter of the southeast quarter of section fifteen, as the original petition did; whereas the survey ordered by the court shoved the division line between those two sections to the north several rods. The record also shows that after the survey and plat thereof were filed, plaintiff filed her amended petition and thereby accepted the last survey and described the land in dispute accordingly. It is allowable to say that presumably plaintiff relied on the old survey in drawing her original petition and on the new in drawing her amended petition. The judgment shows that plaintiff’s title was by limitation; and, while the area of the second description a little exceeds the area of the first, there is nothing to show that the actual land on the earth’s surface, actually in defendants’ possession and actually claimed by plaintiff, was any other or separate tract than that intended to be sued for in both descriptions. In other words, the actual land, the real thing, the subject-matter of the suit (apart from the mere arbitrary and conventional description of it) was the same under each petition. So, the ouster complained of was the same, ■ and for aught appearing here the muniments of title would he the same. Certainly the parol evidence of title by limitation would naturally be the same under both .petitions.

Under such circumstances we are of opinion the motion to strike out was well ruled.

This, because:

(a) At common law the power of amendment (subject to limits not pertinent here) was considered an essential incident of the exercise of all judicial power. [1 Ency. of Pl. and Pr., p. 508.] Therefore, even at common law, amendments were peculiarly within the sound (that is, judicial) discretion of the court. [Chouteau v. Hewitt, 10 Mo. l. c. 134.] Speaking generally, “at common law the amendment of pleadings was regarded as a matter so exclusively addressed to the discretion of the trial court that its allowance or refusal could not be reviewed upon error.” [1 Ency. of Pl. and Pr., p. 524.]

Broadly, the statute on amendments, applicable here, is in aid and declarative of the common law. [Vide, Chouteau case, supra.] Accordingly it has always been construed most liberally to further its benign purpose. Amendments are favored by courts. [House v. Duncan, 50 Mo. 453.] They avoid delay in joining issue on the true merits of a cause and tend to bring litigated controversies to an end. Under the statute on amendments, the trial court’s discretion is not immune from review on appeal, but it will not be interfered with unless palpably abused by grafting a separate and independent suit on the stem of the original proceeding. [Joyce v. Growney, 154 Mo. l. c. 263.] Speaking to the right to amend, this court through Bliss, J. (Allen v. Ranson, 44 Mo. l. c. 267), said: “This is necessarily so much a matter of discretion in the court trying the case, that we must nre-sume that discretion was soundly exercised unless the contrary is shown by a full exhibit.”

That statute reads (Sec. 1848, R. S. 1909): “The court may, at any time before final judgment, in furtherance of justice, and on such terms as may be proper,' amend any record, pleading, process, entry, return or other proceedings, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.”

Attending to that statute, not only do the cases cited show it, but our reports abound in nearly every volume with cases showing a most liberal trend in reviewing the discretion of trial courts in the matter of allowing amendments before judgment in furtherance of justice on such terms as the circumstances of each case bespeak. The case at bar must be ruled in the light of that statute, and of the foregoing decisions, and not otherwise.

(b) Coming closer to the point, the single question involved on this appeal, to-wit, the power of the trial court in the exercise of a judicial discretion to permit the amendment of a land description in an ejectment suit and kindred cases, is far from new to appellate courts.

Such amendments, on substantially equivalent statutes, have been allowed in other jurisdictions. For example: In Grilman v. Cate, 56 N. H. 160, an action of trespass qu. cl. fr., such amendment, correcting a misdescription of the locus in quo, was allowed.

Heilbron v. Heinlen, 72 Cal. 376, was ejectment. In that case the complaint originally described the land as in range twenty. Presently plaintiffs were permitted to amend by striking out twenty and inserting “nineteen,” and it was held well enough as against the contention that the amendment substituted a new and different cause of action.

Cooper v. Granberry, 33 Miss. 117, was ejectment.-In describing the land- in controversy the complaint put it in the “northwest” quarter of a given section when in truth and fact it was in the northeast quarter. An amendment was permitted correcting this mistake. Error being assigned on that ruling, the court on appeal observed: “The object of the suit was to recover a particular tract of land, and it would have been simply useless litigation, after the error was confessed, if the amendment had not been permitted. The object of the'amendment was to bring before the court the true subject of litigation, and not to go through the forms of a trial in regard to a subject, about which there was no controversy between the parties.”

Leeds v. Lockwood, 84 Pa. St. 70, was ejectment. There a misdescription of the land was amended by filing a new description and it was held that, saving to defendants-the right of a defense, if any, on the ground of limitations, they had no right to object to the amendment merely because of the substitution'of a new tract of land. In this connection we refer to a case (Bricken v. Cross, 163 Mo. 449) where, under the particular facts disclosed by the record, the Statute of Limitation was allowed as a defense in ejectment where a new tract of land was introduced by amendment. But that point is not involved here and we need not review the learning on it. Whether the Statute of Limitation would or would not be eked out and tolled (Walker v. Railroad, 193 Mo. l. c. 474, et seg.) in case of an amendment correcting a mere clerical error in a land description or a mere palpable mistake therein is not here for decision at this time.

And in cases involving titles in this jurisdiction the same liberal doctrine in interpreting our own statute on amendments obtains, thus:

Sage v. Tucker, 51 Mo. App. 336, was an action for penal damages for tearing down the fences and gates on the land of Mrs. Sage. Commenced in a justice court, it was sent to the circuit court on defendant’s affidavit putting title in issue. In the circuit court an amendment was permitted giving a different description of the locus in quo. The assignment of error in that behalf was overruled on the authority of Callaghan v. M’Mahan, 33 Mo. 111.

Callaghan v. M’Mahan, supra, was a suit in two counts, one in equity for land under a resulting trust, the other a claim for money had and received and not expended in the entry of the land. After the evidence was in plaintiff was permitted to amend by describing a different tract of land and thereby correcting a mis-description in the petition. Referring to the statute quoted, supra, in disallowing the assignment of error, this court observed: “This section is broad enough to embrace the amendment made. It was a mere mis-description of the land which seems not to have been noticed by either of the parties upon the trial, and the object of the amendment was to make the petition conform to the facts proved. It does not appear that the defendant was taken by surprise, or in anywise prejudiced. ’ ’

The M’Mahan case was followed in the late case of Blanchard v. Dorman, 236 Mo. l. c. 443. That was a partition suit begun in the circuit court of Henry and transferred to the circuit court of Cass. In the latter such steps were taken as amounted to an amendment in the description of the land. It was held that if the court had not permitted the amendment it would have been error. In- deciding the point it was aptly pointed out by BbowN, C., that: “One of the most common grounds fo.r amendment to a pleading is to correct a mistake in the description of the subject-matter of the litigation, and such mistakes occur nowhere more frequently than in the technical description of lands.”

Timber & Iron Co. v. Cooperage Co., 112 Mo. 383, was a suit for damages for a wrongful entry and cutting timber and staves, etc., on plaintiff’s land in Tennessee, and converting same to defendant’s use. The original complaint described the land specifically as “north” of Turkey creek, etc. Depositions were on file showing the land was south of Turkey creek. Plaintiff offering to amend, was refused permission and that ruling we held error.

Doubtless other cases in point could he found if there was any call to take time for a more extended research. The above must suffice. We have examined the cases cited by appellants and there is nothing in them, when carefully analyzed and discriminatingly applied, militating against the exercise of a wise discretion in correcting land descriptions in pleadings on such statutory terms imposed as may he just.

The facts of the instant case, heretofore set forth, are more persuasive in favor of the exercise of a wise discretion in allowing an amendment below, than in many of the cases referred to; for here the trial court, in informing himself on the right to amend and leading up to the exercise of a discretion, could take judicial notice of the entries in the same easel By that token he knew he had ordered a survey at the instance of defendants, knew it had been made and that the dispute was over a boundary line, that plaintiff claimed by limitation and that the offered amendment related to the identical land embraced in the old petition, but which by a new survey had now a new description. It would have been gross error to have refused the right to amend, under the facts before him.

There are provisions of our statutes providing for continuances and for other terms, in the form of costs, in cases of amendment, but here defendants, asking no terms, stood stoutly and unwisely on their motion, raising* a mere improvident and barren point. They put all their eggs in that one basket. The basket fell. Their eggs broke and rightly so; for there is no showing made disclosing an abuse of discretion nisi in allowing the amendment.

Fortunately" for defendants, if they actually have title and the right to possession, it may be the courts are still open to them in another action in ejectment, if, after suffering ouster in this suit they wish to put the issue to the touch, but that question is beside this case and may not be passed on now.

' The judgment is’ affirmed.

All concur.