The circuit court erred in giving the instruction numbered 2 at the instance of the plaintiff. In that instruction the court told the jury that the defendant in this action was estopped by the decrees admitted as evidence from denying the title of the plaintiff to the property in Controversy. Only two decrees were admitted. The first was rendered in an action in which the defendant, the Ozark Land Company, was not a party; and the other was rendered in a case in which the object was to reform a mortgage as to the description of land, and the property involved in this action was not in controversy. It was not estopped by either decree from claiming the property,
The third instruction given by the court was also erroneous, and was prejudicial to the defendant. In it the court instructed the jury to return a verdict in favor of the plaintiff, if they find from the evidence that the defendant, the Ozark Land Company, while in possession of the property in controversy, filed an answer in “ Lane-Bodley Co. v. Ozark Land Co. and Leonard,” and therein denied the right of the plaintiff thereto, and claimed it as its own. Lane-Bodley Co. v. Ozark Land Co. was the action in which the second decree referred to in the second instruction was rendered, and was instituted for the sole purpose of correcting a mortgage as to the description of land. The same error is repeated in it as was committed in the second; and it is erroneous for the additional reason that it ignored the three-years statute of limitations, which was pleaded in the defendant’s answer, and withdrew from the consideration of the jury the testimony of the witness Collier, who testified that the defendant was in possession of the property in controversy in March, 1891, and was then claiming and using it as its own, and withheld from their consideration the additional fact that this action was instituted on the 29 th day of December, 1894, more than three years after the evidence showed that the defendant first claimed and used the property.
The plaintiff claimed the property under a mortgage executed to it by J. W. Leonard, and a foreclosure of the same.. In 1891 Leonard had no right.to sell or dispose of it without the consent of the plaintiff. If it belonged to Leonard at the execution of. the mortgage, the legal title vested in the plaintiff. If, therefore, the land company claimed it without qualification, and used it in 1891, it thereby asserted that it owned and had title to the same in defiance and exclusion of the rights of plaintiff, and was guilty of a conversion, if plaintiff was the owner. This claim and assertion of right and conversion was further shown by the demand of possession of the property by plaintiff in October, 1893, and the refusal of the defendant to comply with the demand. The court should not have excluded the evidence as to conversion in 1891 from the.consideration of the jury. The defendant had pleaded the three-years statute of limitations, and was entitled to have the same considered by the jury in connection with that plea. The third instruction was erroneous and prejudicial to the appellant, because it denied to it this right.
Reversed and remanded for a new trial.
Wood and Riddick. JJ., dissented on the ground that the evidence clearly shows that the conversion of the property owned by appellee occurred within three years next before the commencement of the action, and that therefore the action is not barred, and there was no prejudicial error.