McNamara v. Meunsch

Stayton, Associate Justice.

The two deeds offered in evidence purport to convey to the plaintiff the land described in his petition, and this, coupled with the admission of common source of title, in the absence of some evidence tending to show superior right in the defendant to the particular tract claimed by him in his pleadings, required a finding in favor of the plaintiff. It is true that it is necessary to show that the title of a plaintiff extends to the land claimed in his pleadings, when a defendant asserts title to any part of the land so claimed or relies upon the plea of ‘ ‘ not guilty,' ' but, when this is shown, the plaintiff is entitled to a judgment, unless superior title in the defendant in some way be shown.

If the call for distance from the southwest corner of the Barron tract to a stake on the north line of the Ebner tract, as called for in the deed offered in evidence, be not correct, and facts exist which would make the call for the Ebner line the controlling call, this fact should have been shown by the defendant. From the record before us, there is nothing to show that the plaintiff has not perfect title to every foot of land described in his petition. He exhibited deeds from one admitted to be the common source of title, which conveyed to him the land claimed in his petition; unless there be some fact not shown, that will control the effect which would ordinarily be given to the calls in the deeds. The defendant made no proof, whatever, and, under the charge of the court, there should have been a verdict and judgment for the plaintiff.

Without some proof as to the true position of the Ebner tract, it is impossible to tell whether there is any conflict in the claims of the parties. The court below should have granted a new trial, and, for failure to do so, the judgment will be reversed and the cause remanded.

Reversed and Remanded.

[Opinion delivered April 16, 1886.]