68 Mo. 158 | Mo. | 1878
But two questions were pressed upon our
The forcible entry occuiTed in November, 1868, and this suit was instituted in May, 1869. The question of the defendant’s possession, at the institution, of the suit, was submitted to the jury under instructions given at his own instance, and their finding is supported by testimony which tended to show that he was, himself, in the actual possession of the premises in dispute sometime in the spring of 1869, and that when he was not personally there during that spring, his servants were. Whether he was there as the agent of his son, for whom he had bought a tax title to the land, or in his own behalf, and whether the servants employed in taking possession and making the improvements were the servants of the' defendant, or the servants of his son, were questions which were properly submitted to the jury. It has been very persistently urged that the judgment should be reversed for the reason that a writ against the defendant would be unavailing, inasmuch as he was not living on the land at the institution of the suit, and the persons who were there at that time have not been made defendants herein. Whether other persons who were on the land at the institution of this suit, and who. were not made defendants, can be turned out under a writ of restitution against Prior, will depend altogether upon whether such persons were the servants of Prior. If they were, they undoubtedly can be, otherwise they cannot. We do not understand it to be the law that every domestic and day laborer who may be living upon premises in possession of a defendant in an action of ejectment, or unlawful detainer, must be sued in order to make a writ of possession or of restitution against him effectual; nor do
We will now consider the plaintiff’s possession. In December, 1867, the plaintiff, claiming title under a conveyance read in evidence, employed one Hill to take possession and plow a portion of the land in controversy, during the following season. Hill did not commence plowing until July, 1868, and finding the ground to be very dry and hard, quit after plowing 125 square rods on the land sued for, with the intention, as he stated, of resuming work as soon as the ground should be fit. After this plowing was done, and before defendant entered, plaintiff employed Hill to fence and break up forty acres of the tract. Hill went upon the land in the fall of 1868, to resume the plowing, and found a shanty built by one Dulaney, for the defendant. Hill got out some rails but none were ever hauled upon the laud. These facts, it was declared by this court, when this case was here'before, (60 Mo. 59,) constituted such possession as entitled the plaintiff to maintain this action. In May, 1868, plaintiff, by contract in writing, sold the land in controversy, viz : the southwest quarter of section 9, township 55, range 22, aud the east half of said section to E. D. & C. Webster, for $1,100 cash, $1,100 payable on or before December 1st, 1869, and $1,100 on or before December 1st, 1870, and bound himself to make to said Websters a warranty deed when the deferred payments were made.
The plaintiff testified as follows: “ I claimed the land in question, and my purpose in making said contract with Hill to do said plowing was to ‘make a farm on said land; * * I claimed to be in possession when the shanty was built on the land by Dulaney in November of that year; I did not put the Websters in possession under said contract or title bond; the breaking or plowing done by Hill on the land in suit, was done in July after the title bond was made; in the spring of 1869, or about
Dulaney testified that the northeast quarter and .the southeast quarter were vacant when he built the house for the defendant, Prior, on the southwest quarter; that he knew the Websters, and that they came to the neighborhood between the 1st and 15th of May, 1869. One of defendant’s witnesses testified that Hill, when he was doing the plowing on the land in suit, said “ that he came to take possession for DeGraw; that DeGraw had sold to the Websters, and that there was some other claim and he wanted to get possession.” The foregoing is the evidence bearing upon the question of the plaintiff’s-possession, and it is contended by the defendant that it does not tend to show that the plaintiff was in possession when the forcible entry occurred. It is further contended that the Websters should have brought this action and not DeGraw; that at the time Prior entered, the Websters, and not DeGraw, had the actual possession of the land. This argument is based solely upon the statement made by DeGraw, that he told the Websters to go on the land, and that the contract with
Aeeirmed.
