Jeffreys v. Jeffreys

ANDERSON, J.

— This suit was for 34 feet of land off the west side of the S. y2 of S. E. % of section 2. The defendant pleaded not guilty, which was an admission that he was in possession of the land described ixx the complaint; that is, “34 feet off of the west side of the S. y2 of the S. E. 14 °f section 2.” The plaintiff showed title to all of the S. y2 of the S. E. % and was entitled to the general charge for the land sued for, *619 Avhich was a part of his said 80. The defendant introduced a deed to an adjoining 80, to wit, the E. % °f the S. W. 14 °f section 2; and the main controversy in the case avus whether the strip was a part of the plaintiff’s 80 or the defendant’s 80, hut the defendant’s plea admitted possession of 34 feet on the west side of plaintiff’s 80. There Avas evidence shoAving several surveys and that the exact boundary was uncertain, and that the defendant had been in possession for 17 years of the strip in dispute, but he could only claim adversely as to the land embraced in his deed, as he had no color of title or bona fide claim of purchase to any of the land in the plaintiff’s 80, and could not claim any of it adversely without having complied Avith the statute as to filing a declaration in the probate office under the act of 1893, now appearing, though somewhat changed, as section 2830 of the Code of 1907;

If the strip in dispute was not a part of the plaintiff’s 80, but Avas a part of the defendant’s land, and as the real question in dispute was the proper location of the true line between them, the defendant should have disclaimed and suggested a dispute as to the boundary as provided by section'3843 of the Code of 1907. Having failed to do this and by his plea of not guilty admitted possession of land to which the plaintiff showed title, the plaintiff Avas entitled to the general charge, and, as this was true, any errors that the trial court may have committed, in giving or refusing charges, Avas Avithout injury.

There was clearly no error in permitting the plaintiff to introduce the deeds from Deering to his father and from his father to himself, as proof Avas subsequently made that said grantors were in possession Avhen the deeds were executed. The other rulings upon the evidence, whether erroneous or not, could not have *620 changed the result so as to preclude the plaintiff from his right to the general charge.

The judgment of the circuit court is affirmed. Affirmed.

Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.