Swayze v. Bride , 34 Mo. App. 414 ( 1889 )

Smith, P. J.

This a proceeding to quiet title under section 2562, of the Revised Statutes.

This case was tried before the court, a jury having been dispensed with.

The court found that the plaintiffs were in the possession of the land described in their petition, claiming an estate of freehold therein and that the defendant claimed to have some interest therein adverse to the rights of the plaintiffs.

As to the questions of possession, the facts were passed upon by the court and they are therefore incontrovertable here. This court has only the power to review the law declared by the circuit court and as that court was intrusted with both facts and law we must assume the facts to be as that court found them. Gaines v. Fender, 82 Mo. 509; Hamilton v. Boggess, 63 Mo. 233.

At the trial the defendant asked and the court refused this instruction, to-wit: “For the purposes of this case the court declares the law to be as follows; That in order to recover, plaintiffs must show their possession to be in good faith and not merely nominal or temporary and for the mere purpose of prosecuting this suit.”

“In order to recover, plaintiffs must further show that for a reasonable time prior to the filing of their petition they had been in the actual, open and visible possession of the premises in question, occupying the same by some kind of inclosure sufficiently strong, visible and durable in structure to impart notice, by its presence, of the intention of plaintiffs to exclude other persons from occupying the same.”

We cannot say there was no evidence in the case upon which to base the above instruction.

We think it should have been given as it asserts correct principles of the law applicable to this case. Upon this, the authorities in this state all agree. Rutherford v. Ullman, 42 Mo. 216 ; Dyer v. Baumeister, 87 Mo. 134; Von Phul v. Penn, 31 Mo. 333 ; Campbell v. Allen, 61 Mo. 581; Musick v. Barney, 49 Mo. 458; Lynde v. Williams, 68 Mo. 360; Dyer v. Betz, 14 Mo. App. 45; Keene v. Schneider, 9 Mo. App. 597.

We infer from the refusal of the court to give defendant’s instrustions that it must have made an erroneous application of the law to the facts of the case.

The admission of the plaintiffs’ deed in evidence coupled with the court’s refusal to give said instructions forces upon us the conviction that in the consideration of the evidence the court must have overlooked the distinction that should be observed in cases of this sort, between actual and constructive possession.

For these reasons we think the defendant’s appeal should be sustained.

With the concurrence of Judge Ellison, Judge Gill not sitting,

the judgment of the circuit court is reversed and cause remanded.