author: BURGESS, J.

text:
    THOMAS J. DEE, Appellant, v. JOSEPH NACHBAR.
    Division Two,
    December 10, 1907.
    1. EJECTMENT: Judgment on Pleadings. Plaintiff is not entitled to judgment on the pleadings on the filing of an answer which in the same count admits plaintiff’s possession within the past ten years but pleads estoppel. Nor if the answer, which in one count seems to admit plaintiff’s possession within ten years, in others iJleads a general denial and limitations.
    2. -: Instruction: Principles Embodied in Another. The refusal of an instruction asked by plaintiff in ejectment is not error, if the court, of its own motion, gives a correct instruction covering the theory embraced in the one asked by plaintiff.
    3. -: -: Description. An instruction based on a description found in defendant’s answer, which does not follow that description, but brings in land not in dispute, should be refused.
    4. -: —i-: No Evidence. An instruction telling the jury that if they “believe from the evidence that defendant never intended to claim any part of the land north of the sewer box as the north side of his dwelling” he cannot set up title thereto by adverse possession, where there is no evidence as to where the “sewer box” was, should be refused, since there is no evidence on which to base it.
    5. -: Estoppel: Statement to Defendant’s Grantor. Statements made by plaintiff to defendant’s grantor as to where the stake and true boundary lines were, are just as binding on him as if made to defendant himself, and therefore’ such statements, though not made in defendant’s presence, are admissible in • evidence.
    6. -: -: Pointing out True Line: Changing Mind. An instruction which tells the jury that unless they believe that the stake and line, claimed to have been pointed out by plaintiff, “has always since that time been taken and agreed between plaintiff and defendant to be the boundary line of plaintiff’s property,” etc., should be refused. Such an instruction would authorize the jury to find for plaintiff if he at any time thereafter changed his mind as to the true boundary line. The law is that, if the line contended for by defendant was pointed out by plaintiff to defendant or his grantor, as the true line, it is only necessary that defendant’s use or possession of the strip in dispute continue long enough thereafter to indicate what was the understanding of the adjacent owners.

      7. -: Misleading Instruction: Designating Dividing Line: Evidence Omitted From Bill. Where appellant admits that the entire evidence is not preserved by the bill of exceptions, the Supreme Court will not undertake to pass upon a question entirely or practically controlled by evidence not before it. So that, where appellant complains that an instruction given for respondent was misleading in that it speaks of “the dividing line,” “the line made by Koehler brothers,” and “the true dividing line,” thus placing, as appellant contends, three lines before the jury, in reply to which respondent insists that the designations refer to • only on'e and the same line, as would clearly appear if all the evidence were before the Supreme Court, and appellant admits the bill of exceptions does not preserve the entire evidence, the .court will not undertake to determine whether or not the instruction was misleading.
    8. ——: Instruction: Assumption of Fact. An instruction which assumes as an established fact that the fence therein mentioned “extended from the east end cf the property in question to about the rear of plaintiff’s house,” is not error, where the evidence in favor of the assumed fact was all one way and the fact was in no way controverted.
    9. -: Error in Admission and Rejection of Evidence: Harmless. Where the testimony offered on behalf of appellant and ruled out, and that admitted on behalf of respondent over appellant’s objection, was not of such a character as to have changed the result or to authorize a reversal, even if the rulings of the court were wrong, it is unnecessary for the Supreme Court to determine whether or not those rulings were right or wrong.
    Appeal from Jackson Circuit Court. — Ro». A. F. Evans, Judge.
    Affirmed.

      William G. Forsee for appellant.
    The motion for judgment on the pleadings should have been sustained. Defendant could not, upon his answer, deny that he was in possession when we sued: (a) Because his plea of adverse possession admits the fact of possession. Tatum v. St. Louis, 125 Mo. 647. (b) Because unless the ground described in paragraph two of the answer was part of the land sued for, the plea would have no pertinency whatever to the case. Plaintiff’s suit is for the south three and one-half feet of lot 272; defendant pleads that be is and bas been in possession of tbe land he describes for a period long enough to invest him with title. He does not say in terms that tbe land be describes is tbe ‘‘ south three and one-half feet,” etc., but unless it is tbe same land, be must be deemed to be setting up title to land not in controversy, (c) Because, further, as be admits in paragraph three that tbe land was tbe property of plaintiff in 1894, and as this suit was filed on March 20, 1903, it conclusively appears that be could not have been in adverse possession for the requisite period. His averment is that “tbe stake and line so pointed out by plaintiff [in 1894], as being the correct boundary line between said properties, bas always been taken and agreed to be the south boundary line,” etc. If it was agreed to be tbe line in 1894, then tbe adverse possession did not precede tbe date of the agreement, but could only follow that date. As defendant admits by tbe averments of paragraph three that -plaintiff was in possession in 1894, and as be admits by tbe facts averred that be was in possession at date of suit, it follows that upon tbe face of tbe pleadings plaintiff was entitled to judgment, and bis motion for judgment should have been sustained. The foregoing contention is not weakened by tbe fact that one of tbe defenses pleaded is a general denial. A general denial amounts to nothing as a denial of the fact of possession, when tbe same answer at once proceeds to confess such possession. Price v. Mining C'o., 83 Mo. App. 470; Bank v. Stone, 93 Mo. App-. 292; Darrett v. Donelly, 38 Mo. 494; McCord v. Railroad, 21 Mo. App. 95; Atteberry v. Powell, 29 Mo. 433; Cable v. McDaniel, 33 Mo. 363; Adams v. Trigg, 37 Mo. 143.

      Stubenrauch S Thurmond for respondent.
    Appellant’s main contention is, that bis motion for judgment on tbe pleadings should have been sustained. His, whole argument on this point is based on false premises. His first premise is that defendant, by the second paragraph of his answer, admits that defendant was in possession of the land sued for by plaintiff. To this plaintiff adds another false premise, to-wit: That because defendant pleads that in 1894 plaintiff pointed out this same line as the correct boundary line, therefore, defendant and his grantors, could not have been in possession for a period of ten years prior to the bringing of the suit. He clearly overlooks the fact, which even- his meagre record shows, that there was possession by defendant’s grantors prior to 1894, because Yaughn testifies that hé bought the property in question in January, 1894, and that there was an old fence on the line marked by the stake which Yaughn dug up and which Dee said was the correct line. A general denial, the plea of adverse possession, and the plea of estoppel, are three distinct defenses. Brummell v. Harris, 148 Mo.'440. But if the defenses were inconsistent, the remedy would be by motion to strike out, and not by motion for judgment on the pleadings after verdict.
   BURGESS, J.

— This suit grows out of a controversy over the boundary line between two building lots in Kansas City, the petition alleging that on the first day of March, 1903, plaintiff was, and still is, entitled to the possession of property described as the south three and one-half feet of lot No. 272, block 5, of the resurvey of Whipple’s second addition to Kansas City, Missouri, and that on or about said day the defendant entered upon said premises and unlawfully withheld from plaintiff the possession thereof. Plaintiff prays judgment for the recovery of said premises, fifty dollars damages, and one dollar for monthly rents and profits from the rendition of judgment.

Defendant’s amended answer to the petition states:

‘ ‘ First. That he denies each and every allegation and averment in said petition made and contained.
‘ ‘ Second. For another and further answer to said petition, this defendant alleges that he and his grantors have been in the actual, continuous, undisputed, adverse possession, under claim of title, for more than ten years prior to the filing of the plaintiff’s petition herein of the following-described property, to-wit: Beginning on the easterly line of Allen' avenue, in Kansas City, Missouri, at a point 164.70 feet northeasterly from the intersection of the easterly line of Allen avenue, with the south line of the resurvey of "Whipple’s second addition; thence northeasterly along the easterly line of said Allen avenue, 54.90 feet,' more or less, to a stake set by Koehler Brothers, said stake being on a line about five feet and sis and one-half inches north of the house on lot 273 of block 5, of said resurvey of said "Whipple’s second addition, at the northwesterly corner of said house; thence east, or easterly and parallel with the south line of said resurvey of said Whipple’s second addition, to a stake set by Koehler Brothers; thence continuing along said line to another stake set by Koehler Brothers; thence continuing easterly along said line to a point on the line running northeasterly and southwesterly through the center of said block 5 to the south line of lot 274, of block 5, of said resurvey of Whipple’s second addition, thence westerly to the beginning. That he disclaims any title to, and denies that he is in possession of, any property north of the line herein described.
“Third. For another and further answer, to the petition of plaintiff, this defendant says, that the plaintiff, on or about the year 1894, pointed out to this defendant’s grantor, N. B. Vaughn, a certain stake at or near the line of Allen avenue and on a line five feet and six and one-half inches north of the northwest corner of the house on said lot 273, as being on the line between the property of the said plaintiff and the said N. B. Vaughn; and that said stake and line so pointed out by plaintiff, as being the correct boundary line between said properties, has always been taken and agreed to be the south boundary line of plaintiff’s property, and this defendant and his grantors have made improvements upon this defendant’s property in accordance with and relying upon said boundary line so pointed out by plaintiff. That said' boundary line so pointed out by plaintiff, is the north line of the property, specifically described in paragraph two hereof. Wherefore, defendant says that the plaintiff is estopped from claiming or asserting any other line to be the boundary line between the property of plaintiff and this defendant.
“Wherefore, having fully answered, this defendant prays that plaintiff take nothing by his petition, and that defendant have and recover of plaintiff his costs in this behalf expended.
“Wherefore this defendant prays the court to adjudge that the plaintiff has no valid right in law or equity to the property specifically described in the second paragraph of his answer, and thereupon to enter judgment that plaintiff, and all persons claiming by, through, or under him be forever barred and estopped from having or claiming any right or title adverse to this defendant and those claiming by or through him to any of the property described in the second paragraph of this answer.”

Plaintiff’s replication was a denial of each and every averment of the answer.

The cause was tried before the court and jury, but before any evidence was offered plaintiff orally moved the court for judgment on the pleadings, upon the ground that the pleadings show upon their face that plaintiff was entitled to a verdict for the recovery^ of the property, with nominal damages, and as part of said motion, plaintiff requested the court to give the following instruction:

“The court instructs the jury to find a verdict for plaintiff, in the following form: ‘We, the jury, find for plaintiff, and do assess his damages at one cent.’ ”

The court overruled said motion and refused to give the instruction asked, and plaintiff duly excepted.

N. B. Vaughn, a witness for defendant, testified that he formerly owned the Nachbar house, purchasing it in January, 1894, and selling it in October, 1897, to Nachbar, and that he had had. occasion to talk to Mr. Dee about the dividing line between the two lots.

“Q. What was that occasion — state how it came about? A. There was a spring with a gutter we made, or water drain along the street at that time, as I had no well, and I spoke to him about this spring, and it was just about on the line, or a little over on his right division line, and so he said all right, I could fix it, so I went there to fixing it, and the stake was there which he said was the corner stake between the lots.

“Q. Who said that? A. Mr. Dee.

“Q. I asked you what was the occasion for your talk about the line and his telling you that. Now, you wanted to move this so this spring would come out up there by your house, as I understand it? A. Yes, sir. In digging, I followed the stream until I reached the rocks and got it over on my lot and some ten or twelve feet from where I started, before I got it as far towards the house, to get it out of the sidewalk. We didn’t exactly make it On account of the rocks. In the course of the digging I dug up a stake. Mr. Dee was there with me at the time, and said that this stake was the corner of the lot. The stake was about six feet from where the line would run by the stone wall — from the corner of the house projected out to Allen avenue. There used to be a fence or was a fence when I purchased this property, running from about the rear of this house down to Allen avenue. The fence in front was a post and one or two planks on it, and after it got back to the back end about even with Mr. Dee’s kitchen, then it was a paling fence — the boards stood up straight, is my recollection. The front post of the fence I pulled up and used. Mr. Dee made a statement about that fence. I asked about the line after I purchased in reference to that fence. When I purchased, that fence was about six feet from Nachbar’s house. I remember the drain that has been talked about here — it was inside, on Nachbar’s side of the old fence, when I purchased. My recollection is very distinct as to about the distance the fence I spoke of was from the house. The fence was right by the stake — just south of it. The land was slanting, and the spring was down here, and the stake was at the edge of the lot line, and the fence there didn’t commence until up here a few feet and it was right on a line with the stake. The stake I dug up was on an even line with the fence. My recollection is it was just inside the stake, on Nachbar’s property — my property it was then. I remember a door in the wall when I purchased. I went up to it on the north side. The old fence ran down the hill on the rear of the lot then. It was on a line with the fence I testified about on the front part of the lot, and on a line with the stake I dug up. It was through there when I went there. With reference to the trough, the fence was about — it was from the house, probably a couple of feet — something like that — and then the trough was about a foot or eighteen inches wide, and then the fence was probably four feet or three and one-half feet from that. The fence was there, I purchased it from Homer Reed. I was there in the neighborhood, along about 1897, when I sold to Nachbar. I never heard of any landslide to the north that moved the fence to the north.”

On cross-examination, witness testified:

“I bought it in January, 1894, and sold it in 1897. I never lived there — I rented it out. I’ did not have a survey made when I went there. The old spring I spoke of was first discovered in front of the Dee lot, right on the line. The fence then in existence was six feet north of the Nachbar house. It didn’t run right down to the front. It went down the hill. We fenced up to it right down to the spring. This old fence on the rear part of the lot at the time I left there, in 3897, or sold it in 1897, was kind of wabbly, but it was all there — the most of it. Between the time of my purchase and sale, in 1897, I went around there every month to collect the rent, and sometimes between times. No slide ever occurred on the back part of that lot, which moved this old fence over to the north, during the time I had any connection with it.”

Witness would not undertake to say that the fence running on the rear part of the lot was standing exactly in the same position as when he lived there, but his judgment was that it stood “in exactly the same place, and the post holes in the same place, without any moving, until a year ago.” Witness also' testified that he removed the front fence in the fall of 1894.

Augustus McWilliams, testifying for the defendant, said that he used to live in the lower part of the Nachbar house, and remembered that there was then an old fence along the north side. The fence was about two feet south of Dee’s house. He could not remember how far it was from Nachbar’s. In a conversation had with Mr. Dee about buying the house, witness said he asked Mr. Dee where the line ran, and that the latter said “this old fence is about on the line.” Upon being asked when this occurred, witness said he thought it was about nine years ago.

John Siebold, a witness for defendant, testified that he remembered seeing the old fence in question, and heard Mr. Bee talk about it.

‘ ‘ Q. Where was the fence — the one you talk about ? A. Well, I was standing on the old fence, and I worked for him on Sunday, and I shingled his house, and Tom Bee was standing on the old porch. I said I could push that fence over. He said that old fence is the line— that is what Mr. Dee said.”

The plaintiff excepted to the action of the court in refusing to give the following instructions asked by him at the close of all the testimony:

“la. If you find from the evidence in the case that plaintiff purchased lot 272 and obtained a deed thereto in 1886, and that in person and by tenants he used and occupied any part of said lot under claim of ownership of the whole thereof, under said deed, for ten years thereafter, and that during the whole of said ten years such claim and such use and occupation under said deed was open, notorious, continuous, exclusive and adverse to all others, your verdict must be for plaintiff for the strip of ground lying south of the fence, erected by defendant, running east from Allen avenue, and particularly described in paragraph two of defendant’s amended answer.
“3. If you find from the evidence in the case that plaintiff purchased lot 272 and obtained a deed thereto in 1886-, and that in person and by tenants he used and occupied any part of said lot, under claim of ownership of the whole thereof, under said deed, for ten years thereafter, and that during the whole of said ten years such claim and such use and occupation, under said deed, was open, notorious, continuous, exclusive and adverse to all others, you are instructed that he thereby obtained a good title thereto.
“6. The court instructs you that it is admitted by the pleadings that at the date of the filing of this suit, defendant was in possession of the irregular strip of land, described in paragraph two of defendant’s answer, and that said strip was and is in the south three and one-half feet of lot 272, sued for by plaintiff, and described as follows, to-wit: Beginning on the easterly line of Allen avenue, in Kansas City, Missouri, at a point 164.70 feet northeasterly from the intersection of the easterly line of Allen avenue with the south line of the re-survey of "Whipple’s second addition; thence northeasterly along the easterly line of said Allen aveune 54.90 feet, more or less, to a stake set by Koehler Brothers; said stake being on a line about five feet and six and one-half inches north of the house on lot 273 of block 5', of said re-survey of said "Whipple’s second addition, at the northwesterly corner of said house; thence east, or easterly, and parallel with the south line of said resurvey of said Whipple’s second addition, to a stake set by Koehler Brothers, thence continuing along said line to another stake set by Koehler Brothers; thence, continuing easterly along said line to a point on the line, running northeasterly and southwesterly through the center of said block 5; thence southwesterly along the said center line of block 5, to the south line of lot 274, of block 5, of said re-survey of "Whipple’s second addition, thence westerly to the beginning.
“7. If you find and believe from the evidence in the case that defendant never intended to claim any part of the land north of the sewer box on the north side of his dwelling, unless he should ascertain or become convinced, by a survey thereof, or otherwise, that the north line of his lot was further north than said sewer box, then you are instructed that no matter where said true line may be, he cannot in this action set up title thereto by adverse possession, as said possession is defined and described in other instructions herewith given you.
“11. Although you may find and believe from the evidence in the case that plaintiff pointed out to one Vaughn the south line of his property, as being substantially the same line where defendant built the fence, yet unless you further so find and believe that" said Vaughn relied upon said act, and thereafter continuously claimed right and title, up to the line and pointed out the same to defendant in plaintiff’s presence, at the time defendant bought from Vaughn as being the south line, and unless both Vaughn and defendant continuously used, occupied and claimed the property up to that line, and made valuable and substantial improvements thereon, relying upon such act of plaintiff, plaintiff is not estopped to recover the land', south of said line and north of the sewer box, mentioned in evidence, if otherwise entitled to recover.
“12. Although you may find and believe from the evidence in the case that on or about the year 1894, plaintiff pointed out to defendant’s grantor a certain stake at or near the line of Allen avenue and on a line five feet six and one-half inches north of the northwest corner of the house on said lot 273, as being on the line between the property of plaintiff and said grantor, yet, unless you further find from the evidence that said stake and line, so claimed to have been pointed out by plaintiff, has always since that time been taken and agreed between plaintiff and defendant and his grantor to be the south boundary line of plaintiff’s property, and that defendant and his grantor have made improvements upon defendant’s property, in accordance with, and relying upon said boundary line, you must disregard any and all evidence in regard to any alleged pointing out of said stake or line by plaintiff to said grantor as having no bearing upon the question as to where said boundary line should be located.
“14. If you find from the evidence in the case, under the instructions herewith given you, that plaintiff is entitled to the possession of the whole of lot 272, and that when this suit was filed defendant was in possession of a part of said lot, you will in your verdict state where the south line between said two lots to which you may find plaintiff is entitled to possession is located, and your verdict will be in the following form: ‘We, the jury, find for the plaintiff, and we further find that the line between lot 272 and defendant’s lot, up to which plaintiff is entitled to recover possession, is a line parallel with the north foundation wall of defendant’s house and located --inches north of said wall.’ ”

At the instance of defendant, the court gave the following instructions to the jury:

“1. The court instructs the jury that the burden is upon the plaintiff to prove his case by the greater weight of the credible testimony.
“2. The court instructs the jury that if they believe from the evidence that the division fence built by Nachbar and extending from near the west end of the property in question to about the rear of Nachbar’s house, is on the dividing line of lots 272 and 273, in block 5, of the re-survey of Whipple’s second addition, or that said division fence is south of the dividing line between said lots and if they believe from the evidence that the defendant has never placed any division fence north of the true dividing line, and that plaintiff has never had actual possession of any part of the land south of the fence built by the defendant along the line of the survey made by Koehler Brothers, as shown by the evidence, then your verdict must be for the defendant.
“3. The court instructs the jury that if they believe from the evidence that the defendant and his grantors have been for a period of ten consecutive years or more prior to March 20th, 1903, in the actual, open, notorious, continuous, exclusive and adverse possession of that portion of the property in controversy, which lies south of the old division fence (which said fence extends from the east end of the property in question to about the rear of the plaintiff’s house), and that portion of the property in question which lies south of that portion of the line located and staked out by Koehler Brothers, from Allen avenue to the west end of said old division fence, then your verdict must be for the defendant. .
“4. The court instructs the jury that if they believe from the evidence that any witness has wilfully sworn falsely to any material fact in the case, that the jury may disregard the whole or any part of such witness ’ testimony.”

The court, of its own motion, gave to the jury the following instructions:

“3. If you find from the evidence in the case that plaintiff purchased lot 272 and obtained a deed thereto in 1886, and that in person and by tenants he used and occupied any part of said lot, under claim of ownership of the whole thereof, under said deed, for ten years thereafter, and before this suit was begun and that during the whole of said ten years such claim and such use. and occupation under said deed was open, notorious, continuous, exclusive and adverse to all others, you are instructed that he thereby obtained a good title thereto.
“11. Although you may find and believe from the evidence in the case, that plaintiff pointed out to one Vaughn the south line of his property as being substantially the same line where defendant built the fence, yet, unless you further so find and believe that said Vaughn relied upon said act, and thereafter continuously claimed right and title up to that line, and pointed' out the same to defendant at the time defendant bought from Vaughn as being the south line, and, unless both Vaughn and defendant continuously used, occupied and claimed the property up to that line, and made valuable and substantial improvements thereon, relying upon such act of plaintiff, plaintiff is not estopped by that act to recover any land, if any, south of said line, which you believe from the evidence he is otherwise entitled to recover.
“14. If you find from the evidence in the case, under the instructions herewith given you, for the plaintiff, and that plaintiff is entitled to the possession of the whole of lot 272, and that when this suit was filed defendant was in possession of a part of said lot, you will, in your verdict, state where the south line between said two lots to which you may find plaintiff is entitled to possession, is located and your verdict will be in the following form: ‘We, the jury, find for the plaintiff, and we further find that the line between lot 272 and defendant’s lot up to which plaintiff is entitled to recover possession, is a line parallel with the north foundation wall of defendant’s house and located--inches north of said wall.’ ”

To the giving of each and every of said instructions by the court, of its own motion, and for defendant, plaintiff at the time objected and excepted.

The jury returned a verdict in favor of defendant, and judgment was rendered accordingly. . '

Plaintiff duly filed a motion for judgment on the pleadings, notwithstanding the verdict of the jury, and also, on the same day, filed his motion for new trial, both of which motions were overruled by the court, plaintiff excepting. Plaintiff appeals from the judgment of the court.

The first contention of plaintiff is that his motion for judgment on the pleadings should have been sustained, because the defendant by the' third paragraph of his answer admits that in 1894 the property north of the line described in paragraph two was plaintiff’s property, or, in other words, that the defendant by the second paragraph of his answer admits that the defendant was in possession of the land sued for, and that because the defendant pleads that in 1894 the plaintiff pointed out this same line as the correct boundary line, therefore, the defendant and his grantors could not have been in possession for a period of ten years next preceding the institution of this suit, on March 20,1903, and plaintiff was entitled to judgment.

But the evidence shows that there was possession of the land prior to 1894. Vaughn, a witness for defendant, testified that when he bought the property in question from Homer Reed, in January, 1894, there was an old fence on the line marked by the stake which he, Vaughn, dug up, and which Dee said was the correct line. Besides, the answer pleaded three separate and distinct defenses, a general denial and two affirmative defenses, i. e., the Statute of Limitations and estoppel, and even though defendant failed on the plea of the Statute of Limitations, if he sustained the defense of estoppel, plaintiff could not recover. These defenses were not inconsistent, and even though they were, plaintiff’s remedy was by motion to strike out or to require the defendant to elect upon which one he would stand, and not by motion for judgment on the pleadings.

It is claimed by plaintiff that instruction la should have been given. The argument is that, as defendant’s answer admitted that the land described therein is the same land sued for and plaintiff had held adverse possession of it under color of title since 1886, he had thereby perfected right and title of possession in himself, and that as the second paragraph of defendant’s answer admitted that he was in possession, no bar remained to plaintiff’s recovery. This is in effect and substance the same argument that was made in support of the contention that plaintiff’s motion for judgment on the pleadings should have been sustained, and for the same reason given by us upon that matter, the instruction was properly refused. But in any event, instruction number 3, given by the court of its own motion, was all that plaintiff was entitled to upon this feature of the case. Nor was there error in the refusal of instruction 3, asked by plaintiff, because practically the same instruction, in almost the same language, was given by the court of its own motion, and it is no error to refuse an instruction asked for when the court gives a correct instruction of its own motion covering the theory of the one asked and refused. [Smith v. Eno, 15 Mo. App. 576.]

Plaintiff complains of the action of the court in refusing instruction number 6. It is apparent, we think, that this instruction, when read in connection with paragraph two of the defendant’s answer, under which it was evidently drawn, was drawn under a misapprehension of the allegation. This instruction says that the irregular strip of land described in paragraph two of defendant’s answer was and is the south three and one-half feet of lot 272, sued for by plaintiff, and then proceeds to describe it minutely, but not as described in said paragraph two of the answer, which is as lots 273 and 274, thus describing both of defendant’s lots (one of which is not in question), and then gives an exact description of the property claimed by defendant. It fixes as the correct north boundary line of defendant’s property the Koehler line. This description describes land 54.90 feet wide, while the instruction asked the court to tell the jury that it is the south three and one-half feet of lot 272.

Plaintiff further complains of the action of the court in refusing instruction number 7, asked by him, to the effect that if the jury “believe from the evidence that defendant never intended to claim any part of the land north of the sewer box as the north side of his dwelling,”. etc., he cannot in this action set up title thereto by adverse possession. There is an entire absence from the abstract of any evidence upon which to predicate this instruction. The only evidence about the “sewer box” was that of Vaughn, where he speaks of a “trough,” probably meaning the same thing.

Plaintiff next insists that instructions numbered 11 and 12, asked by him, were erroneously refused, and also insists that instruction 11, given by the court, should not have been given. The language of said instruction number 11, given by the court, differs from that asked by plaintiff in this, that it leaves out the words “in defendant’s presence” and the words “and north of the sewer box,” and incorporates therein the words “if any,” after the word “land,” as it appears in the next to the last line in the instruction.

In order that plaintiff’s statement to Vaughn in regard to the stake and boundary line should be admissible against him in favor of the defendant, it was not necessary that it should have been made in defendant’s presence, for as defendant holds under Vaughn, plaintiff’s statements at the time, and his act in pointing out the stake and boundary line, are just as binding upon him by way of estoppel, in favor of defendant, as they would have been in favor of Vaughn, had he been the defendant.

Instruction number 12, asked by plaintiff, and refused by the court, is vicious, in that it tells the jury that unless they believe that said stake and line, so claimed to have been pointed out by plaintiff, has always since that time been taken and agreed between plaintiff and defendant and his grantor to be the south boundary line of plaintiff’s property, etc. It needs but a glance at this instruction to discover its infirmity. If the line, as contended for by defendant, was pointed out by plaintiff to Vaughn as the true line, as testified by the latter, it was only necessary that the use or possession continue long enough to indicate what was the understanding' of the adjacent landowners (Brummell v. Harris, 148 Mo. 430); yet, under this instruction, had it been given, the jury would have been authorized to find for plaintiff if he had at any time thereafter, even up to the time of the submission of the case to the jury, changed his mind or have denied that the line pointed out by him to Vaughn was the true line. Such is not the law as we understand it.

Another insistence of the plaintiff is that instruction numbered 2 given for the defendant was calculated to mislead the jury, in that, it speaks of “the dividing line,” “the line made by Koehler Brothers,” and “the true dividing line,” thus placing, as plaintiff contends, three lines before the jury. Upon the other hand, defendant insists that the three designations are as to one and the same line, as would clearly appear if all the evidence were before the court. It is admitted by plaintiff that the entire evidence is not preserved by the bill of exceptions; in the absence of which, this court will not undertake to pass upon a question controlled entirely, or at least practically so, by evidence not before us. To do so would be mere guess work, in which we are not permitted to indulge.

Plaintiff also criticises instruction number 3, given for defendant, upon the ground, as he contends, that “it ■ states to the jury, as an established fact, that the fence therein mentioned extended from the east end of the property in question to about the rear of the plaintiff’s house.” The evidence disclosed by the record upon this question was all one way, and as the fact was in no way controverted, plaintiff’s criticism of the instruction is without merit.

Other errors are assigned by plaintiff to the action of the court in admitting testimony in behalf of defendant over the objection of plaintiff, and in overruling motions by plaintiff to strike out certain testimony introduced by defendant; but this testimony was of such a character that, whether the ruling of the court upon its admissibility were right or wrong, it would not justify a reversal of the judgment, nor could it have changed the result; hence, it seems unnecessary to pass on these questions.

The instructions given covered the entire case, which seems to have been well tried. Finding no reversible error in the record, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    RUBY SPERRY v. ALLIE COOK, Appellant.
    Division Two,
    December 10, 1907.
    APPELLATE JURISDICTION: Title to Real Estate: Execution: Homestead. Where the only issue in the case is whether defendant has a homestead in the real estate which has been seized and levied upon and advertised for sale under execution, title to real estate is not so involved as to give the Supreme Court jurisdiction of the appeal from the order of the court setting aside an order sustaining a motion to quash the levy of execution.
    Appeal from DeKalb Circuit Court.— Hon. A. D. Burnes, Judge.
    Transferred to Kansas City Court of Appeals.

      Hewitt S Hewitt for appellant.

      Hubbell & Hubbell for respondent.
   FOX, P. J.

— This cause is now pending in this court upon appeal on the part of the defendant from an order granting the plaintiff a new trial in the circuit court of D'eKalb county, Missouri.

Preliminary to the consideration of this cause upon its merits, as disclosed by the record before us, we are confronted with a motion interposed by the respondent to transfer this canse to the Kansas City Court of Appeals. The reason assigned in the motion is that the appellant’s statement and record filed in this court show that this action is not one involving title to real estate within the meaning of the constitutional provision defining the jurisdiction of the appellate courts of this State. Proceeding to dispose of this motion it will be well to briefly state the nature and character of this action. On the 16th day of March, 1905', there was issued out of the office of the clerk of the circuit court of DeKalb county a certain execution in favor of the plaintiff herein and against this defendant upon a certain judgment in said execution described. Under and by virtue of such execution the sheriff of the county to whom said execution was directed, levied upon and seized all the right, title and interest of the defendant in and to certain real estate, and under and by virtue of said execution and levy aforesaid, the sheriff of said DeKalb county advertised the lands of the defendant, so levied upon and seized, for sale. At the May term, 1905, of the DeKalb Circuit Court the defendant filed his motion praying the court to quash said levy and return under said execution and hold the same for naught, assigning as a reason for such motion and petition that the land of the defendant so levied upon was occupied as a homestead and that it was acquired as a homestead and that at the time of the levy the sheriff neglected to set off, as the law directs, a homestead out of such land and still refuses so to do. This motion coming on to be heard by the trial court, was taken up and after due consideration sustained, and on the 5th day of May, at the May term of said court, the plaintiff filed a motion for a new trial, and on the 9th day of May of the said term of court said motion for new trial was taken, up and after due consideration was by the court sustained, and the order made sustaining the motion to quash the execution was ordered set aside andl all the rights of plaintiff restored. The defendant then interposed a motion for rehearing, as well as a motion in arrest of judgment. These motions were taken up and heard and by the court overruled. From the action of the court in granting the plaintiff a new trial defendant prosecutes this appeal.

This is a sufficient indication of the nature and character of the proceeding to enable us to determine the jurisdictional question presented by the motion to transfer to the Kansas City Court of Appeals.

OPINION.

The same proposition presented by the motion of respondent to transfer this cause to the Kansas City Court of Appeals was in judgment before this court In Banc in Snodgrass v. Copple, 203 Mo. 480, and it was there held that a case presenting the question whether one is entitled to a homestead right in certain land so that it will be exempt from execution, does not involve the title to real estate so as to give the Supreme Court jurisdiction under the provisions of article 6, section 12, of the Constitution of this State. The disclosures of the record in that case were substantially the same as in the case at bar. Valliant, J., speaking for this court, exhaustively reviewed all of the authorities upon that question and finally announced the conclusion that the title to real estate was not involved, and therefore this court was without jurisdiction.

If the conclusions reached in that case are to be followed, and we see no valid reason for departing from them, the motion to transfer this cause should be sustained, and it is therefore ordered that this cause be transferred to the Kansas City Court of Appeals.

All concur.


text:
    JOHN L. DAVISON et al. v. FLORENCE M. DAVISON, Appellant.
    Division Two,
    December 10, 1907.
    1. JUDGMENT: Clerical Errors: Nunc Pro Tunc. The law does not authorize the correction of judicial errors under the pretense of correcting clerical errors in the judgment. If the court rendered a judgment it intended to render, it has no authority at a subsequent term to change such judgment by rendering one that was not in fact rendered, even though it may subsequently be discovered that some error of law was committed in rendering it.
    2. -: -1: Dower. The court has no authority in its decree assigning to a widow homestead and dower to limit the enjoyment of her dower to her widowhood; and, if the clerk in writing up the judgment places such a limitation thereon, it is void, but changes in the main body of the decree (outside of the clerical error) cannot be corrected by a nunc pro tuno entry at a subsequent term.
    3. -: -: -: Homestead: Nunc Pro Tunc Entry: Appeal. The commissioners’ report assigning homestead to the widow during her life or widowhood and admeasuring to her dower in the rest of the real estate during her natural life was, by agreement of all parties, approved and confirmed by the court, but the clerk in entering judgment limited her dower as well as the homestead to “her natural life or widowhood.” Four terms afterwards she applied for a mine pro tunc order correcting the judgment, and that was allowed, and the judgment was so modified as to remove the limitation upon her dower, and then she appealed, and alleges as error that she was entitled to dower in the homestead tract, which was not given her by the report and decree. Held, first, that there was no necessity for making the nunc pro tunc entry correcting the phraseology of the decree as originally entered, but the limitation on her dower was without force and vitality; second, the trial court had no power at the subsequent term to change the decree so as to allow her dower in the homestead, for if that was error, it was a judicial error; and, third, there was no action of the court at the time the nunc pro tunc entry was made from which an appeal lies.
    Appeal from Jasper Circuit Court . — Hon. Jos. D. Perkins, Judge.
    Appeal dismissed.

      E. L. Shannon for appellant.
    Appellant was entitled to dower in the homestead of her deceased husband. Chrisman v. Lind'erman, 202 Mo. 605. The facts found hy the commissioners show that appellant was entitled to have the entire homestead tract assigned to her as a part of her dower, and therefore the judgment should have given her dower, as well as homestead, in that tract. 11 Ency. PI. and Pr., 906-, 907, 908.

      M. G. McGregor for respondents.
    (1) From what is appellant prosecuting her appeal? The record shows her appealing from an order of the circuit court which sustains the motion filed hy her for a nunc pro tunc entry of judgment. She is estopped from complaining of an error of her own creation committed at her request. St. Louis v. Lawton, 189 Mo. 482; State ex rel. v. Wooldridge, 192 Mo. 14; Sprague v. Sea, 152 Mo. 339. (2) Appellant now claims that on the authority of Chrisman v. Linderman, 202 Mo. 605', the final decree of the circuit court should have given her dower in the homestead tract. Even if the court took the wrong view of the law, it was powerless to change its decree at a subsequent term of the court. Besides, it does not appear that the court’s attention was ever called thereto. Burnside v. Wand, 170 Mo. 543; Jones v. Hart, 60 Mo. 354; Wooldridge v. Quinn, 70 Mo. 371; Boss v. Boss, 83 Mo. 101. A mistake of law or fact does not constitute an irregularity. Brackett v. Brackett, 61 Mo. 223. (3) The report of the commissioners and the final decree follow the statute and all the decisions of this court in setting off first to appellant her homestead and then dower in other lands, and the decree of the court entitles her to possession of the homestead and other land set off to her and it nowhere appears that her possession is disturbed or threatened. B. S. 1899', secs. 3620, 3621; Gore v. Riley, 161 Mo. 244; Seek v.’Haynes, 68 Mo. 17; Graves v. Cochran, 68 Mo. 76; Bryan v. Rhoades, 96 Mo. 489; C’assity v. Pound, 167 Mo. 610.
   FOX, P. J.

— This cause is now before this court upon appeal by the defendant from a judgment ad-measuring to her homestead and dower in certain real estate of which her husband died seized. We deem it unnecessary to reproduce the pleadings in this cause, therefore will be content with a mere reference to them indicating their nature and character.

The respondents,' as the children and legatees of John Q. Davison, deceased, commenced an action in the circuit court of Jasper county, Missouri, on the second day of June, 1902, against the appellant, to assign and admeasure to appellant her dower in the real estate of her deceased husband, the said John Q. Davison. In her answer the appellant pleaded that a certain portion of said real estate was the homestead of her deceased husband and herself prior to his death and prayed that the same, as well as her dower, be set off to her. By an interlocutory decree commissioners were appointed and directed to set off homestead and dower to appellant. The commissioners found the value of the real estate of the deceased to be $6,885, and set off a tract to appellant of the value of $1,500 for her homestead, and another tract of the value of $795 for her dower, the value of the homestead and dower tracts being equal - to one-third the value of all the real estate of the deceased. The report of the commissioners neither, affirmed nor denied the right of appellant to dower in the homestead tract. The report of the commissioners was approved and confirmed by agreement of the parties, but in writing up the judgment the clerk concluded as follows, to-wit: “It is therefore considered, adjudged and decreed by the court that the said homestead and dower interest heretofore set off by the commissioners herein to Florence M. Davison, widow of John Q. Davison, deceased, be and the same is vested in the said Florence-M. Davison during her natural life or widowhood.”

The interlocutory decree made in this cause was at the November term, 1902. At the succeeding term, being the March term, 1903, said commissioners made their report to the court, which was as follows:

“Having first taken and subscribed the oath required by law, which is herewith filed, to faithfully discharge our duties and honestly and impartially execute the trust imposed in us, respectively, we proceeded to the land and other real estate of the deceased, situated in Jasper county, Missouri, and described as follows to-wit: [Here follows description of the lands of the deceased, including the lands described in paragraph four of this stipulation]; and all of which real estate above described belonging to said deceased at the time of his death, we find of the total value of $6,-885, out of which we set off to the defendant for her homestead all of the interest of the deceased (being a five-sevenths interest) in the ten acres, the southwest quarter of the southeast quarter of the northeast quarter of section 10, township 28, range 3; and for the remaining two-sevenths interest, belonging in fee to the plaintiffs, Orville B. Davison and Mary J. Keener, we set off four acres therefrom' off of the west side thereof, and the remaining six acres off of the east side of said ten acre tract, on which is situate the late residence of the deceased, we set off to the defendant, Florence M. D'avison, as her homestead, valued by us at $1,500, for and during her natural life or widowhood, and from the residue of the real estate of the deceased we set out and admeasured to the defendant as her dower, diminished by the amount of her interest in said homestead, the following described lots and parcels of land situate in said Jasper county, to-wit: Fifty-two and a half feet wide, east and west, off of the west end of the south half of lot 43, and 52 1-2 feet wide, east and west, off of the west ends of Lots 44 and 45- in Sarah A. Barker’s addition to the city of Carthage, Jasper county, Missouri, and a tract of land described as follows: Beginning at the southwest corner of Lot 45 in Sarah A. Barker’s addition to the city of Carthage, running thence west thirty feet, thence north 150 feet, thence east 30 feet, thence south 150 feet to the place of beginning, said above dower tracts in all fronting 82 1-2 feet on Cedar street in the city of Carthage, on which is situated a house, and valued by us at $795 — said homestead and dower being valued at $2,295, said dower being- for and during the natural life of the defendant. ’ ’

This report was at the same term, by agreement of the parties, both respondents and appellant, approved and confirmed by the court. The decree was entered in the record of the court by the clerk thereof and it was in this entry of the decree in which the con-chiding part of it as heretofore indicated, was embraced.

After the lapse of four regular terms of court the appellant in this cause seems to have discovered the limitation which the decree in the concluding part sought to impose upon the enjoyment of her dower interest. Therefore at the November term, 1904, she filed her motion for a mine pro tunc entry of judgment, seeking thereby to correct the error contained in the decree respecting the limitation placed upon her dower rights. The court sustained this motion and made a nunc pro 'tunc entry as of date of the original decree-, April 4, 1903, in which the original decree was changed so as to read that the six-acre homestead was vested in the appellant during her natural life or widowhood and the dower tracts were vested in her for and during her natural life, conforming to the report of the commissioners and the docket entry of the judge. In other words, the court sustained the motion of the appellant herein and removed the limitation placed upon her dower interest in the original decree. The record discloses that after the sustaining of this motion defendant filed her affidavit for appeal and the court granted an appeal to this court and the record is now before us for consideration.

OPINION.

We are unable to see how this court, upon the disclosures of the record before us, is to in any way interfere with the judgment and decree rendered in this cause by the trial court. The record discloses that the commissioners were appointed at the November term, 1902. At the succeeding term, being the March term, 1903, they made their report assigning homestead and dower in the manner as indicated in the report. At the same term of court at which the report of the commissioners was filed, the record recites the appearance of the parties and by agreement between said parties said report was approved and confirmed. The decree was therefore entered approving and confirming the report. It was in this decree that the objectionable features in the concluding part of the decree were embraced in which there was a limitation upon the enjoyment of the dower interest by the appellant to her natural life or widowhood. There was no appeal from this decree, but as the record discloses, after the lapse of four regular terms of court, upon motion of plaintiffs the objectionable features to the decree were eliminated by a nunc pro tunc entry made by the court.

I.

In our opinion there was no necessity for the making of the nunc pro tuno entry correcting the phraseology of the decree as originally entered. In that decree the defendant’s homestead and dower interest had been assigned and the court had no power to place a limitation, other than that which is placed by the law, as to the length of time the widow should be entitled to enjoy such dower interest. That part of the decree was without any force or vitality and could, by no means, be enforced against the widow, and her right to enjoy the estate of dower in the lands of which her husband died seized was in no way affected by it. As to changes in the main body of the decree, which was entered in conformity to the agreement of respondents and appellant, the court had no power to correct any errors of law at a subsequent term of the court. The general rule is that no final judgment can be amended after the term at which it is rendered. The law does not authorize the correction of judicial errors under the pretense of correcting clerical errors. [Ross v. Ross, 83 Mo. 100; Freeman on Judgments (3 Ed.), sec. 69.] A court may at any time correct clerical errors by the minutes of the judge or by some record in the cause showing clearly that such a clerical error was committed; and it may even correct a judgment entry so as to mate the judgment that which the court in fact rendered. [Robertson v. Neal, 60 Mo. 579; Fletcher v. Coombs, 58 Mo. 430; Hyde v. Curling & Robertson, 10 Mo. 359; State ex rel. v. Primm, 61 Mo. 166.] But, on the other hand, if the court renders a judgment which it intended to enter, it has no authority at a subsequent term to change such judgment by rendering one that was not in fact rendered, even though it may subsequently be discovered that some error of law was committed in the rendition of such original judgment. In this cause there is no dispute, so far as the main body of the decree is concerned, that the court entered the judgment it intended to enter, and furthermore entered it in conformity to an agreement by the parties to the proceeding.

Learned counsel for appellant insists in his brief that the widow was entitled to dower in the homestead of her deceased husband and directs our attention in support of that contention to the case of Chrisman v. Linderman, 202 Mo. 605. That case is unlike the case at bar, and it will suffice to say of it that the conclusions therein reached were predicated upon an entirely different state of facts to those in the case we now have under consideration; hence it has no application to the controversy in this proceeding, therefore we deem it unnecessary to review it or in any way discuss it.

In our opinion, at the November term, 1904, at which time the nunc pro tunc entry was entered upon the motion and suggestion of the appellant, there was no action of the court at that term from which the defendant had a right to appeal.

We have given expression to our views upon the record before us, which results in the conclusion that the appeal in this case was inadvertently granted and therefore should be dismissed. It is so ordered.

All concur.


author: BURGESS-, J.

text:
    MINOS C. VINCENT, Appellant, v. JOHN R. MEANS and JOHN CLAPP.
    Division Two,
    December 10, 1907.
    1. FINDING: By Court Sitting as Jury: Law Case. A presumption in favor of the correctness of the finding of the court sitting as a jury in a law. case (ejectment) is to he indulged, just as it is indulged in favor of the correctness of a verdict of a jury in a like case; that is, it will not he disturbed by the Supreme Court unless there is an absence of substantial evidence to sustain it.
    2. INSTRUCTION: Second Appeal: Copied in Opinion. The fact that an instruction was set out in the statement on the former appeal, no point being made thereon, nor any mention thereof in the opinion, does not mean that it was then approved o'r that it embodied the law of the case.

      3. DEED: Defective Acknowledgment. A deed properly signed and delivered, with, the intent of vesting the title in the grantee, not recorded in this State because acknowledged before a justice of the peace of another State who had no authority to take acknowledgments to deeds of lands in this State, is just as effectual to convey title to the grantee as it would have been had it been properly acknowledged and recorded; but it is not good against an innocent purchaser from the same grantor.
    4. -: Existence: Proper Evidence. The existence of a deed from plaintiff to his brother, through whom defendant claims title, and the recognition by both of the brother as owner, may be shown by facts and circumstances, where plaintiff denies the existence of the unrecorded deed, and tries to recover the land by disputing his brother’s right to sell it.
    Appeal from Putnam Circuit Court.— Hon. Geo. W. W anamaker, Judge.
    Affirmed.

      John G. McKinley and Higbee S Mills for appellant.
    (1) The uncontradicted evidence is that a fiduciary relation existed between plaintiff and his brother, who agreed to pay the taxes and look after plaintiff’s lands. Defendant proved plaintiff’s assertion of this relation by McClanahan in his interview at Salt Lake City in 1892, and by Marshall and Brawford in 1894 at Unionville. A. B. Vincent was plaintiff’s agent-when he leased it to Marshall in 1885, and when Marshall fenced it in July, 1885. This possession in its inception was the possession of plaintiff. He could not be tricked nor cheated out of it by any artifice of his brother. A. B. Vincent’s sale and deed to Means, followed by the latter’s exclusive possession, did not give the possession an adverse character. To convert a friendly or subordinate possession into an adverse possession, in any case, there must be a clear, positive and continued' disclaimer and disavowal, and an assertion of an adverse right, brought home to the owner. These are indispensable before any foundation can be laid for the operation of the statute. Zeller’s Lessee v. Eckart, 4 How. 296; Hamilton v. Boggess, 63 Mo'. 249; Budd v. Collins, 69 Mo. 139'; Meier v. Meier, 105 Mo: 431; Stevenson v. Black, 168 Mo. 561; Coberly v. Coberly, 189 Mo. 17; Hart v. Adams, 86 Mo. App. 80; Pitzman v. Boyce, 111 Mo. 392; McCune v. G-oodwillie, 102 S. W. 997; Stewart v. Miles, 166 Mo. 181. The court, therefore, erred in refusing declaration 3, prayed by plaintiff, and by striking out the latter part thereof inclosed in brackets. This identical declaration, including the part in brackets, was given on the first trial, was assigned as error by defendant, but received the approval of this court and is the law of the case. 184 Mo. 338. (2) The record title to this land was in plaintiff. The plat book of entries and the records of the patents in the General Land Office were notice to the world. That Marshall may have supposed A. B. Vincent was owner does not alter the complexion of the case. That A. B. Vincent never told Marshall plaintiff had made him a deed until he invented that falsehood in his letter of March 18,1891, is clear beyond all question, from Marshall’s letter of March 23, 1891, and all the prior correspondence. Butif A.B. Vincent did from the first claim ownership of the land, Marshall’s possession was none the less plaintiff’s possession; neither he nor Means could claim any other right against plaintiff than A. B. Vincent could rightfully claim, and neither could “dispute the title of his landlord until and unless he first surrender possession to his landlord.” Stewart v. Miles, 167 Mo. 181. Yet this hypothetical admission, recalled after the lapse of years, is made the basis of a claim of title. “It would he too hazardous to divest titles upon such uncertainties. ’ ’ Panning v. Doan, 139 Mo. 414. It cannot be considered for the purpose of proving the execution of a deed, and of overturning a legal title, especially when positively denied by plaintiff. 2 "Wharton Ev. (1 Ed.), secs. 1082, 1089, 1092-3-5; 1 Greenleaf Ev. (13 Ed.), sec. 200, n. a., and 201. The giving of defendant’s declaration 1 was therefore error.

      N. A. FrankUn, D. M. Wilson and A. W. Mullins for respondents.
    (1) The evidence on the trial tended strongly and we think to a reasonable certainty to support the claim made by A. B. Vincent, and this for a period of twenty-odd years before he sold the land to Means through Marshall as agent, that the land was his and had been conveyed to him by his brother, the plaintiff, by a deed of conveyance defectively acknowledged — the acknowledgment having been taken by a justice of the peace in the State of Ohio. But if such deed was made by the plaintiff to his brother, A. B. Vincent, and delivered to him, it conveyed the title though defectively acknowledged and not therefore entitled to record, or though .neither acknowledged at all or recorded. Vincent v. Means, 184 Mo. 327; Parsons v. Parsons, 45 Mo. 265; Stephens v. Hampton, 46 Mo. 404; Tiedeman on Real Property, sec. 810. (2) If A. B. Vincent was. not the agent of the plaintiff with respect to the land in question when he by his agent, Marshall, made the sale of it to Means, and under his purchase Means entered into the actual and exclusive possession of the land, on or about March 1, 1889', and from that time on to the commencement of this action, to-wit, February 28,1901, said defendant remained in the actual possession thereof by himself, his agents and tenants, claiming said land as his own, then the plaintiff’s right of action was not only barred by the ten-year Statute of Limitations but the absolute title of the land had become vested in the defendant Means. Mississippi County v. Vowels, 101 Mo. 225; Wilkerson v. Ellers, 114 Mo. 245; Ekey v. Inge, 87 Mo. 493; Barry v. Otto, 56 Mo. 177; Fulkerson v. Mitchell, 82 Mo'. 13.
   BURGESS-, J.

— This cause was before this court on a former appeal by the defendants, and was then reversed and remanded for further trial. [184 Mo. 327.] The last trial resulted in a judgment for defendants, from which judgment, after an unavailing motion for a new trial, plaintiff appeals, and assigns error.

The action is ejectment for a tract of land in Plitnam county. The case was tried by the court without the aid of a jury.. In the former opinion of this court the facts in the case were fully stated, but upon the last trial additional facts were shown by defendants which confirmed their position on the former appeal.

As the cause was tried by the court, a jury being waived, the same presumption is to be indulged in favor of the correctness of the finding as the verdict of a jury, and it will not be interfered with by the Supreme Court unless there be an absence of substantial evidence to sustain such finding. [Irwin v. Woodmansee, 104 Mo. 403; Godman v. Simmons, 113 Mo. 122; Gould v. Smith, 48 Mo. 43; Gaines v. Fender, 82 Mo. 497.]

Plaintiff contends that the court erred in refusing to give declaration of law numbered 3, as asked by him, and in giving it in a modified form. As asked, it reads:

“If the court, sitting as a jury, find from the evidence that plaintiff entered the land in question and made arrangements with his brother, A. B. Vincent, to look after the land and pay the taxes thereon, and his brother agreed to do so, and plaintiff went away and has resided abroad, relying upon his brother to pay the taxes on said land, and about the year 1885 said A. B. Vincent leased the land in his own name to witness Marshall, without disclosing that he was acting as agent for plaintiff, and witness Marshall fenced the land and paid taxes thereon under the terms of his lease for the use of the pasture, and remained in possession of said land under said agreement until March, 1891, when said A. B. Vincent sold and conveyed said land to defendant Means, then you are instructed the relation of said A. B. Vincent to plaintiff was that of agent, and the possession of witness Marshall was not under claim of ownership', either in himself or of A. B. Vincent, hut was consistent with and not in opposition to nor adverse to plaintiff’s title and ownership; in other words, the law presumes that Marshall’s, possession up to the time A. B. Vincent conveyed said land to Means, in March, 1891, was in law a.'ul in fact plaintiff’s possession, and this possession could not he changed to- an adverse possession by any intent on the part of A. B. Vincent not disclosed to plaintiff.
‘ ‘ [Before this presumption of the law can be overthrown, defendant Means must show by the preponderance or greater weight of the evidence that actual notice was brought home to plaintiff ten years before this suit was brought that A. B. Vincent claimed to be the actual owner of said land, and had repudiated the relation of agent for plaintiff as to said land, and that plaintiff had notice thereof more than ten years before this suit was brought, and unless the court so find the verdict will be for the plaintiff.] ”

The court eliminated from said declaration all of that part in brackets, being the last sentence, and then gav,e it as thus modified.

It is said by plaintiff “that this identical declaration, including the part in brackets, was given on the first trial, and was assigned as error by defendants, but received the approval of this court, and is the law of the case.” But this is a misapprehension of the facts as disclosed by the record. This declaration of law was simply copied in the record, as were all other declarations of law in the case, but no point was made thereon, nor was there any mention of it in the opinion. It cannot, therefore, be said that it was approved by this court, or is the law of the case. Judge Fox, speaking of a similar instruction in the recent case of State v. Fogg, 206 Mo. 696, held that the mere fact that an instruction given by the trial court is incorporated in the statement by the appellate court does not mean that such instruction is without objection or has the approval of this court.

It is probable that the paragraph in question was stricken out by the court because it eliminated and removed from its consideration one of the vital issues in the case, and upon which the evidence was conflicting; that is, as to whether plaintiff had conveyed the land in question to his brother, A. B. Vincent, about the year 1867.

The evidence tends strongly to show that A. B. Vincent, for more than twenty years before he sold the land to defendant Means, through Marshall as agent, claimed that the land belonged to him and had been conveyed to him by his brother, the plaintiff, by a deed of conveyance defectively acknowledged, such acknowledgment having been taken by a justice of the peace in' the State of Ohio. Not being properly acknowledged according to the laws of this State, it could not be admitted to record here; but if, as there was much evidence tending to show, it was signed and delivered by M. C. Vincent to his brother, A. B. Vincent, with the* intent and purpose of vesting the title in him, it was just as effectual to pass the title as if it had been properly acknowledged and recorded. Of course, it would not have been good against an innocent purchaser from M. C. Vincent. [Vincent v. Means, 184 Mo. 327; Parsons v. Parsons, 45 Mo. 265; Stevens v. Hampton, 46 Mo. 404; Tiedeman on Real Property, sec. 849.]

It is said for plaintiff that even if A. B. Vincent did from the first claim ownership of the land, Marshall’s possession was none the less plaintiff’s possession, and that neither Marshall nor Means could claim any right against plaintiff which. A. B. Vincent conld not rightfully claim, and neither “could dispute the title of the landlord until and unless he first surrendered possession of his land.” If, as contended by defendant, A. B. Vincent owned the land as far hack as 1867, it is not a little difficult to see how Marshall’s or Means’s possession was plaintiff’s possession, for neither of them took or held under him, hut under A. B. Vincent, who claimed to own the land and exercised acts of ownership over it.

Plaintiff also claims that the evidence introduced by defendants as tending to- show the existence of the deed in question was not sufficient for that purpose. Fanning v. Doan, 139 Mo. 392, which is relied upon by plaintiff as supporting his contention, was an action in ejectment to recover possession of an undivided one-fifth of a tract of land in Grundy county. In that case it was sought by verbal testimony to control the express provisions of the deed, and this court said “it would be too hazardous to divest titles upon such uncertainties.” But that is not this case. Here only was sought to be shown the admission by both M. O. Vincent and A. B. Vincent of. the execution of a deed from the former to the latter for the land in question, and the claim, by A. B. Vincent of the land, and his exercise of acts of ownership over it for many years, during which a small portion of it was condemned as his property for a railroad right of way, and his receipt of the damages allowed therefor, and the sale of the balance of the tract to Means for $800, of which purchase price Means paid him $200, and the execution by Means of- a mortgage on the land to secure the payment of the balance of the purchase money. No attempt whatever was made to alter or in any way change or contradict the deed, but the fact of its existence and its recognition by both plaintiff and his brother could properly be shown by evidence, and facts and circumstances were as competent for that purpose as for the purpose of establishing any other fact or issue in the case.

Plaintiff challenges declaration of law numbered 3 given in behalf of defendant upon the ground that it assumes that Marshall took possession and fenced the land in 1884, while the evidence shows that possession was taken by him for A. B. Vincent in the spring of 1885. Conceding that the time mentioned in the declaration was erroneous, and should he fixed as in the spring or summer of 1885, instead of 1884, we are unable to see how plaintiff was prejudiced by this mistake, because, according to the evidence and the theory upon which this declaration is based, plaintiff’s cause of action was barred by the ten-year Statute of Limitations long before the institution of this suit on February 28, 1901. This declaration is based, of course, upon the theory, as to which there can be no question, that A. B. Vincent was the owner of the land when Marshall enclosed it by fence for him, after which he held it adversely to all the world, and that when defendant Means purchased the land from him and took actual possession of it, he succeeded to Vincent’s possession, which continued to be adverse, and nothing that A. B. Vincent could do after said sale and purchase could change the nature of such possession.

The declarations of law given by the court presented the case very fairly for both parties, and the finding and judgment were well warranted by the evidence.

The judgment should be affirmed. It is so ordered.

All concur.


text:
    W. F. SIMONTON v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    December 10, 1907.
    NEGLIGENCE: Riding on Inner Footboard: Instruction: New Trial. Plaintiff was riding on the inner footboard of a street car, and the a'rm or elbow of a passenger riding on the inner footboard on a car going in the opposite direction on the other track came in contact with him and both were knocked off. There was evidence that the footboards extended a foot from the cars, and that there was a space of about a foot between them, and there was substantial evidence on defendant’s part tending to show that both plaintiff and the other passenger were leaning out over the footboards towards each other and to establish defendant’s plea of contributory negligence that plaintiff’s injuries were the result of a lack of proper care and caution on his part. Helé, that it was not error to give defendant’s instruction that it was plaintiffs duty “to exercise such degree of care as the position he was in rendered reasonably necessary to prevent his being struck by passengers on the car passing on the other track; and if the jury believe from the evidence that plaintiff, while upon such footboard, could, by standing upright thereon, and not leaning outwardly towards the cars on the other track, have avoided being struck by a passenger on the passing car, and that he failed to maintain such upright position and in consequence of such failure was struck and injured,” etc., and the giving of that instruction being the only ground assigned by the trial court for setting aside a verdict for defendant, and the record failing to disclose any other ground, it was error to grant plaintiff a new trial.
    Appeal from St. Louis City Circuit Court. — No». O’Neill Ryan, Judge.
    Reversed (ivith directions).

      Boyle & Priest, Morton Jour dam and Edioard T. Miller for appellant.
    (1) The court erred in sustaining plaintiff’s motion for a new trial, as defendant’s instruction 5 properly declared the law. It correctly stated plaintiff’s duty while on the inner footboard of the car. Allen v. Railroad, 183 Mo. 411; Aslibrook v. Railroad, 18 Mo. App. 290; Nugent v. Railroad, 73 Conn. 139'; Flynn v. Railroad, 65 N. J. Law 546; Moylan v. Railroad, 128 N. Y. 583; Moody v. Railroad, 65 N. E. 29; Nellis, Street Railway Accident Law, p. 131. (2) The court erred in sustaining plaintiff’s motion, for a new trial as ' upon the entire record the verdict should have been for defendant. Moore v. Railroad, 176 Mo. 528; Markowitz v. Railroad, 186 Mo. 350; Ashbrook v. Railroad, 18 Mo. App. 290; Nugent v. Railroad, 73 Conn. 139; Flynn v. Railroad, 65 N. J. Law 546; Craighead v. Railroad, 123 N. Y. 391. (a) There was no evidence that defendant was negligent in the manner specified, and plaintiff is confined to the particular negligence charged. (b) Plaintiff’s injuries resulted solely from his own negligence.
   FOX, P. J.

— This cause is here by appeal on the part of the defendant from an order in the circuit court of the city of St. Louis awarding the plaintiff in this cause a new trial. This was an action for personal injuries, in which the amount of damages was laid at ten thousand dollars. The issues presented in this cause were substantially as follows:

The petition alleges that on June 17, 1903, defendant received plaintiff as a passenger on an east-bound Olive street car, gave him a transfer to the Jefferson avenue line and received him as a passenger on one of its north-bound cars of the latter line at the place where passengers were usually received; that the car being crowded plaintiff was invited to ride, and did ride, on the running-board of said car; that while he was thus riding, near the intersection of Olive street and Jefferson avenue, he was struck and knocked from the car, crushed and dragged by the south-bound car and its passengers and was thereby injured. Negligence was charged as follows: ‘ ‘ And the plaintiff avers that he was caused to be so struck and injured, first because defendant’s track, at and near where injury was so sustained, was in a defective and insecure condition. That at said place, which was just south of Olive street, the track was worn loose and defective, the joints of the rails of said north-bound track were separated and too low and caused the car to jolt and sway, so as to bring passengers riding on said foot board into contact with passengers on the foot board of the south-bound car, and as the car on which the plaintiff was such passenger, was passing a south-bound car of the defendant at said point owing to said defects of said track said car was caused by said defective condition of said track to sustain jolts and jerks, to sway laterally and plaintiff’s body to be brought into contact with the body of another passenger on defendant’s south-bound car, and he was thereby caused to fall from said car and sustain injuries as aforesaid.

“And plaintiff further avers that defendant’s tracks at said point were constructed so near to each other as to make it dangerous for persons riding as passengers upon the running-boards of passing cars, and that the defendant was, and its agents and servants in charge of said car were, negligent in failing to warn plaintiff of said danger, and thereby directly contributed to cause plaintiff’s said injuries.”

The answer was a general denial, and contributory negligence pleaded as follows: “For further answer and defense, defendant says that plaintiff’s alleged injuries were caused by his own negligence in standing upon the inner foot board of the car upon which he was riding, in a position then known to plaintiff to be attended by the danger of being struck and injured when said car should be passing a south-bound car on said. Jefferson avenue, and while plaintiff was in such position he was struck and injured when passing such south-bound car.”

The reply was a general denial.

Upon the trial of the cause plaintiff’s evidence tended to prove that at the time he was injured, to-wit, on June 17,1903, he was employed as a painter on Berlin avenue in the city of St. Louis. At that' place he boarded an east-bound Olive street car, paid his fare and received a transfer to the Jefferson avenue line at its intersection with the Olive street line. Defendant operated cars over double tracks on Jefferson avenue and Olive street, the west-bound Olive cars using the north track, the east-bound the south track, and the north-bound Jefferson cars using the east track, and the south-bound the west track. Late in the afternoon there was much traffic at the intersection of these streets, and persons frequently boarded north-bound Jefferson avenue cars, and were received as passengers, on the south side of Olive street rather than at the proper place on the northeast corner. Plaintiff alighted from the east-bound Olive car on the west side of Jefferson avenue at about five-thirty in the afternoon, waited for a south-bound Jefferson car to pass, and walked to the north-bound Jefferson car, then stationary, about forty feet south of Olive. He took a position about ten feet from the rear end of the car on the west or inner running-board, which extended the entire length of the car. There were three or four other persons on this running-board, all of whom were north of him nearer the front of the car, and the seats in the ear as well as the outer running-board were crowded. "When plaintiff was struck he was standing on the running board holding to the back of a seat, with the portion of his body above the hips leaning in towards the seats in the car. When his car started he saw the southbound car approaching, and there was a passenger, Ellerman, on its inner running-board near the rear end. When the north-bound car had traveled about twenty-five or thirty feet plaintiff and Ellerman came in collision with each other, Ellerman’s elbow or arm striking plaintiff in the breast, and plaintiff was rolled for about fifteen feet between the cars, and fell to the ground when the cars had entirely passed each other. Ellerman testified that he boarded the south-bound car while it was north of Olive street and stood' on the east or inner running-board about the center of the car. He was facing south but turned his face toward the car to see if there were any vacant seats. As his car was crossing Olive street he looked south, saw the northbound car approaching, and thereupon leaned in. toward the car as much as the seated passengers would permit in order not to be struck as the cars passed. He did not see anyone on the north-bound car’s running-board and did not know what struck him or what he struck. The cars were simply moving forward pretty close to each other, and he did not observe that either of them had any other than a forward motion or movement.

On the day following the accident A. G-. Torrence, an insurance agent, who had been employed by plaintiff to effect a settlement with defendant, went to the scene of the accident, and gave the following testimony over defendant’s objection as to what he saw there: There is a joint in each one of these various Olive and Jefferson tracks, four or five feet from the actual point of intersection, and from each of these joints is a short rail laid almost at right angles to the nearest intersecting rail. These joints south of the Olive street track appeared to be loose where the wheels had apparently battered the rail down in passing. He saw single-truck cars, that is, cars with four wheels under the center, pass this point, and when the two front wheels would reach the joint the front of the car would tip, and when the two rear wheels would reach the joint the rear of the car would tip, thereby producing a rocking motion. The short rails before mentioned were out of alignment in that they did not strike the Olive track exactly at right angles, giving the single-truck cars also a lateral motion. The running-boards on the cars that he saw extended about a foot from the car, and the two inner running-boards of passing cars came within about a foot of touching each other, and this was the nearest point of approach of the cars that he saw.

Defendant’s evidence tended to prove that about the year 1900 the city established a regular grade for Jefferson avenue, embracing its intersection with Olive street, and the tracks were laid to the new grade at the direction and under the supervision of the city. The city also prescribed the line, height and manner of constructing the tracks, and they were laid in conformity to the city’s specifications, including the slight deflection in the line of the Jefferson tracks at their intersection with the Olive tracks. This was testified to by the city engineer who had personal charge of the work. The tracks remained at the date of the accident exactly as they had been constructed, and while necessarily worn some, were not worn to such an extent as to involve at all the service and movement of the cars, nor were the joints of the rails loose at all. A number of motormen and conductors who had traveled over the Jefferson line that day in charge of cars testified that the track at the place in question was in good condition, one of the witnesses stating that with over a year’s experience with single-truck cars passing that point he had never seen any two of them sway in passing so as to come near together, but that there was always lots of room between them.

In addition to these witnesses Christopher Heimers, a lumber commission merchant, who was a passenger on the south-bound car, facing Ellerman, testified that he saw Ellerman on the running-board of the south-bound car, leaning out, apparently trying to find a seat. He also saw the plaintiff leaning ont from • the running-board of the north-bound ear, and saw the two men strike against each other, roll between the cars, and fall to the ground. There was a number of other people on both the inner running-boards. This testimony was partly corroborated by Bert Inman, a passenger on the south-bound car. Martin Stark was standing immediately behind Ellerman on the running-board of the south-bound car and there were several passengers directly in front of Ellerman also on the running-board. He saw four or five passengers on the inner running board of the north-bound car, and all of these passengers on both running-boards passed in safety except Ellerman and the plaintiff.

Rev. D. E. Standard was a passenger on the south-bound car and saw a number of passengers on both running-boards. He* testified that he saw Ellerman and the plaintiff leaning out over the running-boards and witness wondered why they did.not get in closer to the car. They alone of all the foot-board passengers were struck.

There was other testimony on the part of the defendant tending to show that during the month immediately preceding the accident plaintiff had been over this same line, making the same transfer, a number of times, many times riding on the inner running board, and had never been injured himself, nor had he seen others on the running-board injured.

Upon cross-examination of the plaintiff he made this statement: “Well, gentlemen of the jury, it is inexplicable, as I said, I may have ■ been leaning further out than I thought I was, and he struck me. He would move past two- or three people on the car and I may have made some movement after they were passed, and then it was he struck me. That is all the way I can account for it.”

At the close of the evidence the court instructed the jury and the cause was submitted to them and they returned a verdict finding the issues for the defendant. A timely motion for new trial was filed by plaintiff on the 26th day of March, 1904. This motion was continued to the April term, 1904. On the second day of April, 1904, and at the April term of said court, the motion for new trial was sustained, for the reason that the court erred in giving instruction numbered 5 requested by defendant, to which action of the court in setting aside the verdict returned by the jury and granting plaintiff a new trial, the defendant properly preserved its exceptions. Prom the order granting plaintiff a new trial, defendant prosecutes this appeal, and the record is now before us for review.

OPINION.

■ It is apparent from the record in this cause that there is but one legal proposition presented for our consideration, that is, the error assigned upon the action of the court in awarding a new trial, based upon the ground that the trial court erroneously gave instruction number 5 in behalf of defendant. We are not favored in our consideration of this cause by a brief or any suggestions by learned counsel for respondent in support of the action of the trial court; hence, our attention is not directed to any reasons forming the basis of the action of the trial court other than the one assigned by the court, that the new trial was granted on account of the error in giving instruction number 5. An independent investigation and analysis of the record fails to disclose any other grounds as a basis for the action of the court in awarding plaintiff a new trial; hence we are confronted with the single proposition involving the correctness of instruction number 5. This instruction was as follows:

‘ ‘ The jury are instructed that it was the duty of the plaintiff, in going upon the western or inner foot board of the car upon which he entered, to exercise such degree of care as the position he was in rendered reasonably necessary to prevent his being struck by passengers on the car or by the car passing on the other track; and if the jury believe from the evidence that the plaintiff, while upon such running or foot board, could, by standing upright thereon, and not leaning outwardly towards the cars on the other track, have avoided being struck by a passenger on or by the passing car, and that he failed to maintain such upright position and in consequence of such failure was struck and injured, then the plaintiff is not entitled to recover and your verdict must be for the defendant.”

An instruction substantially embracing the same legal features as the one now before us, was in judgment before Division No. 1 of this court in Allen v. Railroad, 183 Mo. 411. In that case the defendant requested instructions, numbered 16 and 17, declaring the law upon the facts developed at the trial in that cause, as before stated, substantially the same as instruction number 5 in the case at bar. Judge Valijant, speaking for the court, in treating of the complaint, lodged against the action of the court in refusing the instructions requested by defendant, said: “Instructions 16 and 17 asked by defendants were refused. They were to the effect that when the plaintiff stepped on the inner footboard, it became his duty to exercise such degree of care as the position he was in rendered reasonably necessary to prevent his being struck by a passing car and if by standing upright and not leaning out he would have avoided being struck, yet failed to observe that care, he was not entitled to recover. . . . The evidence for the defendants, upon which these instructions were predicated, tended to show that the space between the passing ears in which it was available for a man to stand, was from twenty-eight to thirty inches. If that testimony was true, then it was a legitimate inference for the jury to draw that the plaintiff would not have been struck if he had stood erect on the footboard and not leaned outward. The defendants were entitled to those instructions and it was error to refuse them.”

It is plainly manifest that if the Allen case is to be followed, it is decisive of the proposition now under consideration, and the action of the trial court in granting a new trial for the reason assigned, must be held erroneous. The conclusions reached in the Allen case respecting the propriety of the instructions requested and refused, find support in the cases of Nugent v. Railroad, 73 Conn. 139; Flynn v. Railroad, 67 N. J. Law 546; Moylan v. Railroad, 128 N. Y. 585; Ashbrook v. Railroad, 18 Mo. App. 290.

The issue as to contributory negligence of the plaintiff was sharply presented by the pleadings in this cause. There was sufficient substantial evidence introduced by the defendant tending to establish that the plaintiff’s injuries were the result of want of proper care and caution while riding upon the inner footboard of defendant’s car, to warrant the court in directing the attention of the jury to that subject as was done by instruction number 5.

While it may be said, upon the facts disclosed by the record, that the plaintiff had the right to ride upon the inner board of defendant’s car, yet it is equally clear that his position in so riding was attended with danger of being hurt; therefore, in our opinion it was very appropriate under the circumstances to direct the attention of the jury to the necessity of plaintiff exercising due care and caution to avoid injury.

Again it will be noted that the court in its instruction numbered 1, given for the plaintiff, fully recognized that the principal danger of injury from riding-on the inner board of defendant’s car was that to which the attention of the jury was directed by instruction number 5.

We have indicated our views of the proposition disclosed by the record, which results in the conclusion that the action of the trial court in granting a new trial in this cause was erroneous, and its order and judgment should be reversed, with directions to render judgment in conformity with the verdict returned by the jury, and it is so ordered.

All concur.