Three States Lumber Co. v. Rogers

Gantt, P. J.

Ejectment for forty acres of land, the southwest quarter of the southwest quarter of sec *448 tion 16, township 23, range 16, in New Madrid county. Ouster laid on the twenty-first day of April, 1894. Answer is a general denial and an adverse possession for more than ten years prior to the institution of this action. Reply denies new matter.

The land was school land and belonged to New Madrid and Mississippi counties. As such it was sold and patented to H. W. Molder and George W. Whit-comb on March 13, 1854, by the Governor of Missouri. These purchasers made a joint school mortgage to Mississippi county to secure a school bond of $800 and interest. In 1868 the undivided half interest of Molder was sold under said mortgage and purchased by Mississippi county for the school fund. In 1872 Whitcomb died, and by his last will devised this land under a general disposition to George E. Whit-comb and Irene Bethune, afterwards by marriage Mrs. Irene Williams: George E. Whitcomb afterwards in 1872 conveyed all his right, title and interest in said lands to Edward J. Deal. In 1874 Deal sold and conveyed his interest to plaintiff. In 1894 a partition suit was brought by E. J. Deal, Harrison R. Williams, and Irene, his wife, against Mississippi and New Madrid counties to the use of the capital school fund of township 23, range 16, for the partition of section 16, township 23, range 16. Half of said section lies in New Madrid and half in Mississippi county. Partition was decreed and the land ordered sold, and after advertisement was sold April 3, 1894, to plaintiff for $480.

The trial of this cause was to a jury. Verdict for the plaintiff and defendant appeals. Sundry errors are assigned and will be noted in their order.

I. It is insisted that one Harrison acquired title to the land by adverse possession and that the circuit coart erred in rejecting Harrison’s evidence. This evidence it appears was offered in the shape of a deposition and upon *449 objection was excluded. The deposition has not been preserved in the bill of exceptions and it is utterly impossible for this court to say this ruling constituted error because we have no knowledge whether the evidence offered was relevant to the issue on trial. There is no presumption that the evidence was competent. On the contrary to convict the trial court of error the deposition should have been preserved, so that an inspection would disclose its relevancy or competency.

II. Again it is said the court erred in admitting the will of George W. Whitcomb andthe deed of George E. Whitcomb to Deal, and Deal’s testimony. The only objection to the will was that it showed no title whatever in Whitcomb to west half of section 16. We are not certain that we appreciate the point of objection because it is clear that by the Governor’s patent George Whitcomb took a fee simple in an undivided one half of the tract in dispute, and he had never conveyed it prior to the time he devised it to George E. Whitcomb. George E. Whitcomb’s deed conveyed his interest to Deal. As to Deal’s evidence we find no exception whatever when he was testifying'. This assignment seems wholly without merit. It was wholly unnecessary for George Whitcomb to specify the lands by numbers in his will. The residium clause was amply sufficient for that purpose.

III. Another objection was directed to the petition to the county court for the sale of section 16. The objection was that it was irrelevant, incompetent and immaterial. We have often ruled that such an objection is entirely too indefinite to avail in this court.

IV. The objections to the testimony of Sims, Deal, Lee and Marshall now urged were not made in the circuit court, and fall within the rule prescribed by the legislature in section 23.02, Revised Statutes 1898.

*450 Y. We think the instructions for plaintiff fairly stated the law. No error was committed in refusing defendant’s third instruction. As an instruction on adverse possession it is fatally defective in not requiring the possession in Rogers to be continuous. His instruction numbered 2 was likewise defective in, not requiring Harrison’s possession to be adverse — a very material fact in view of the evidence that he was in arrears for the purchase money and that he abandoned the property and acted as agent for the county. We have gone through each assignment in connection with the record and we think the judgment was for the right party. We might have dismissed the appeal on account of a failure to observe our rules as to abstracts, but have given a very liberal construction in behalf of defendant and examined all the points made in the briefs.

The judgment is affirmed.

Burgess, J., concurs; Sherwood, J., absent.