Kelley v. Kurz

Bukgess, J. This is an action of ejectment for the possession of a tract of land in Pike county [416] described as follows: Commencing at the southwest corner of the northwest quarter of the southeast quarter of section 29, township 54, range 3, west, and running east a distance of eleven and seventy-nine hundredths chains; thence north twenty-six and onelialf degrees west ten and seventy-five hundredths chains; thence north nine and one-half degrees west four and seventy-two hundredths chains; thence north eighty-three and one-half degrees west five and eighty-nine hundredths chains; thence south fifteen chains to the place of beginning, containing twelve and thirty-three hundredth acres. The petition is in the usual form and the answer a general denial. The judgment was for plaintiff for possession of the land sued for, and defendant appealed. Upon the trial the plaintiff read in evidence the township entry plat book of Pike county from which it appeared that one Bennett Goldsby entered the southeast quarter of section 29, township 54 of range 3, west. It is stated by counsel for plaintiff in their brief that “the land sued for is described as being in the north half of said southeast quarter,” while the contention on behalf of defendant is that the description of the land in the deeds under which plaintiff claims title is so indefinite and uncertain that it was impossible to locate it. There was no evidence introduced by plaintiff showing or tending to show that Goldsby had ever at any time parted with his title to the land, and, while the evidence showed that plaintiff and those under whom he claimed ’had been in the actual possession of it, or at least a part of it, claiming the whole under color of title for fifty years, he failed to show a regular chain of title from Goldsby, or to in any manner connect his own title therewith. [417] The court at the instance of plaintiff instructed the jury as follows: “The court instructs the jury that under the deeds read in evidence and copy of plat from the register and receiver’s office the legal title to the land in dispute is in the plaintiff, and if the jury believes from the evidence in the case that on the ninth day of June, 1890, the defendant was in possession of same, that is, using and controlling the same exclusive of the use and control of anyone else, then the verdict should be for plaintiff.” This instruction is clearly erroneous, for the reason that, while the record evidence showed that Bennett Q-oldsby entered the land, the evidence does not show that plaintiff ever at any time acquired this title, w7¿ich seems to have been outstanding at the time of the commencement of this action. In order to have justified this instruction plaintiff must have shown a regular chain of title from the United States government down to and in himself. It is equally clear that plaintiff and those under whom he claimed had acquired the title to the land in controversy under the statute of' limitations, having been in actual possession of it for more than ten consecutive years. And moreover that he was entitled to recover as against the defendant upon the proof of his prior possession under color of title. Hunt v. Railroad, 75 Mo. 252. But the case was tried upon a different theory. It may not be improper to say that there was but very little evidence that defendant was ever in possession of the land in controversy. As the evidence shows that plaintiff was unquestionably entitled to recover possession of the land upon the ground that he and those under whom he claimed had acquired the absolute title under the statute of limitations as well also as upon the ground of prior [418] possession under claim of right, we regret to be compelled to reverse the judgment and remand the cause for another trial, but our duty compels us to do so. The judgment is reversed and the cause remanded. All of this division concur.