Bell v. Jamison

Brace, J. — This is an action in ejectment for the possession of a strip of land, sixty feet wide, on the north side of a tract of land in Lincoln county, conveyed by metes and bounds by the. defendant and other heirs of his father to one James H. McGee, on the seventh of March, 1881, and afterwards on the ninth of September, 1884, conveyed by said McGee to the plaintiff. The strip is within the inclosure of the defendant (who owns the tract on the north) by means of a fence which is on or about the same line that it was when the conveyance was made to McGee. The plaintiff asserts that the true line of his premises acquired by virtue of said deeds is sixty feet north of said fence. This the defendant denies ; says he has been in the continuous adverse possession of the same for more than ten years before this suit was commenced, and that the line to which he claims was established by agreement as the line between the two tracts by his father, under whom the plaintiff and the grantors in the deed to McGee derived the title conveyed to, and under which, the plaintiff now claims the strip, and the owners of the tract north of it, and to which the defendant has since acquired title, and that the plaintiff is thereby estopped from denying that such line is not the true line. The controversy is solely upon the proper location of the boundary line between plaintiff and defendant, —coterminous proprietors, —the plaintiff claiming that the proper boundary line was that surveyed by John Wilson, county surveyor of said county, recently before this suit was brought, and which ran about sixty feet north of the defendant’s south fence, and the defendant claiming that the proper line was that on which his fence was located, and which was the same surveyed by John O. Downing in 1870, who was. also at that time the county surveyor of said county. If on the evidence the Wilson survey was the true line the plaintiff was entitled to a verdict, not otherwise. If on the evidence the Downing survey was. the [75] true line, or if it was not the true line, but that line had been agreed upon and established between the grantors under whom both parties claim as the boundary libe between their premises, whether the same was the true line or not, in either event the defendant was entitled to a verdict. The verdict of the jury was for the plaintiff and from the judgment rendered thereon the defendant appeals, and assigns several errors for reversal which will be noticed in their order. I. . There is nothing in the objection to the admission of the evidence of Gruyon Wilson inTebuttal. The order in which evidence shall be introduced is largely within the discretion of the trial court, and its action in that behalf will not be interfered with, unless it is manifest on the merits that the party has been prejudiced, which is not the case . here. Nor did the court err in refusing to require the plaintiff to testify on his cross-examination whether he bought the land by the acre. By his deed from McCee the land was conveyed to him by metes and bounds, and these bounds were the measure of his claim ; they could not be varied or changed by parol, and his answer could have thrown no light upon the issue in regard to an agreement as to the boundary line between others to which he was not a party in fact. II. On the trial the defendant offered to read in evidence the deposition of John C. Downing, the surveyor, to which plaintiff objected. His objection was sustained, and the defendant excepted. Attached to the deposition was a proper and formal notice to take the deposition certified to have been served in the proper manner, and in time by “ A. W. Fanner, Con-table, per C. C. Balew, Deputy Constable. The deposition was taken by a proper officer at the time and place stated in the notice, and was duly and properly authenticated. The objection to its admissibility was that no proper notice of the taking had been given; to meet this the defendant showed, by the [76] evidence of both the plaintiff and his attorney, that the plaintiff had received a copy of the notice in time, and sent it to his attorney who also received it in time ; but owing to what he considered a fatal defect in the notice he did not attend the taking ; the defect being that in the copy received by the plaintiff the words, “In the circuit court for the county of Lincoln, state of Missouri,” were omitted in the caption and style of the case ; consequently, it did not notify him in what court the cause was pending in which he was notified that the deposition would be taken; he, however, admitted that this was the only cause then pending any where between him and the defendant, and his attorney admitted that this was the only cause in which he was retained by the plaintiff against the defendant. Conceding that the notice was defective, and would have been obnoxious to a motion to suppress, no such motion was made ; but the objection is first raised after the parties had gone to trial and the plaintiff had introduced all his evidence in chief, and the defendant, his documentary evidence. The objection came too late, and ought to have been overruled. Delventhal v. Jones, 53 Mo. 460; State ex rel. v. Dunn, 60 Mo. 64; Holman v. Bachus, 73 Mo. 49. The deposition contained material evidence for the defendant pertinent to the issues in the case, and its rejection was prejudicial to him on the merits. For the first time in this court, the point is raised, that it did not appear that the defendant under the statute showed a right to read the deposition on account of the absence of the witness from the court. In the deposition the witness stated chat his home was “at Camden Point, Missouri.” The court will take judicial notice that Camden Point, Missouri, is not in Lincoln county, and this point is not well taken, even though it had been raised in the court below ; but, as it was not, the question is not before us for consideration. [77] III. The court refused to give the instructions asked for the plaintiif, gave four as asked for by the defendant, modified one presented by him and gave it, and refused four others. The instructions given presented fairly to the jury the law of the case, as laid down in a series of cases in this court. Turner v. Baker, 64 Mo. 218 ; Jacobs v. Moseley, 91 Mo. 457; Schad v. Sharp, 95 Mo. 574; Atchison v. Pease, 96 Mo. 566 ; Krider v. Milner, 99 Mo. 145; Skinker v. Haagsma, 98 Mo. 208. The instructions presented the case to the jury in as favorable a manner for the defendant as the law and the evidence would warrant, and we deem it unnecessary to examine them in detail, finding no material error in the action of the court thereupon. For the error of the court in excluding the deposition of Downing the case will be reversed, and remanded for new trial. All concur.