52 Mo. 46 | Mo. | 1873
delivered the opinion of the court.
This was an" action of trespass under the statute to recover treble damages for removing from the land described in the petition certain fencing.
The answer denied the allegations of the petition, and for
The Court sustained a motion of plaintiff to make the answer more definite and certain, to which defendant excepted; and failing to file an amended answer;, there was an inquiry of damages by a Jury, and a verdict for plaintiff for $87.75, and a judgment for treble that sum rendered by the court.
A motion for a new trial being overruled, defendant excepted, and brings the cause to -this Court by Appeal.
The record presents but a single point for our consideration, namely, the ruling of the court, in sustaining the motion, to make more definite and certain, defendant’s answer. The motion applied to the whole answer, as well as to that part which traversed the allegations of the petition, as to the new or affirmative matter which, it is claimed, constituted a defense to the action.
This new matter, as already stated, consisted of an alleged reservation of the fencing, both at the time of the conveyance to a son of defendant, and to the plaintiff’s intestate. IIow this reservation was made, what the conditions, if any, does not appear. But so far as it may involve the Statute of Frauds, the presumption is in favor of its validity. (Gist vs. Eubank, 29 Mo., 248.)
Although it may have turned out on the trial that such reservation was no bar to the action, it may have been admis
The statute provides that if it shall appear on the trial, that the defendant had probable cause to believe that the land on which the trespass is alleged to have been committed, or that the thing so taken, carried away, injured or destroyed, was his own, the plaintiff in the action or prosecution, shall receive single damages only; (2 W. S., §4, 1346,) and while the burden of showing probable cause for the trespass is on the defendant, it has been held that it is not necessary that he should set it up in his plea or answer. (Walther vs. Warner, 26 Mo., 143, 149.)
But is expressly averred that the defendant was in the possession of the fencing, and the farm which it in part enclosed, at and long before the commencement of the suit. This action can be maintained only where the plaintiff is in the pos session of the close at the time of the commission of the trespass'. It is an action for injury to the possession, which may be actual or constructive. But if the defendant be in the actual possession the action cannot be maintained, and plaintiff’s remedy is by ejectment. (Cochran vs. Whitesides, 34 Mo., 417.) This issue was made by the answer, and it was a question of fact, which if found as alleged in the answer, would have been decisive of the case in defendant’s favor, independently of any other issue made by the pleadings.
The Court erred in sustaining the motion to make the answer more definite and certaiu.
The judgment is reversed and the cause remanded.