26 Mo. App. 297 | Mo. Ct. App. | 1887
Lead Opinion
delivered the opinion of the court.
This is an action of trespass de bonis asportatis, if anything. The plaintiff’s petition is as íoIIoavs :
“ The plaintiff states that, on or about the thirtieth*299 day of January, 1883, at the county of Howell, and state of Missouri, the defendants, without leave, and. wrongfully, entered on the southwest quarter of northeast quarter, southeast quarter ofi northwest quarter, and northwest quarter of southeast quarter of section 27, township 27, range 10, west, of which the plaintiff was the owner of the timber standing and growing on said land above described, and there cut timber of the value of ten thousand dollars, and carried it away, by which acts and doings of the defendants the plaintiff was damaged in the sum of ten thousand dollars, for which he asks' judgment.”
The answer is a general denial
Upon the trial the defendants objected to the introduction of any evidence, on the ground that the petition failed to state a cause of action, and at the close of the plaintiff’s case, they demurred to all the evidence, on tbe ground that neither the petition nor the evidence' showed any right of recovery in the plaintiff. Both these objections were overruled and the trial resulted in a judgment for the plaintiff. The defendants, among other things, assign for error the action of the trial court in overruling these objections.
These complaints of the defendants are 'just. The petition fails to state that the plaintiff ever was in possession of either the, land, or the,timber. Possession is essential to maintain such an action. Garner v. McCullough, 48 Mo. 318; Cochran v. Whitesides, 34 Mo. 417, 419; More v. Terry, 61 Mo. 174. It is immaterial in that regard whether the action is trespass or trover, as the only distinction between the two, if any, seems to be that the one is founded on mere possession, and the other on right, as constituted or evidenced by possession, actual or constructive.
The averment of possession being essential, its-omission was a fatal defect, which could not be cured by verdict. Frazer v. Roberts, 32 Mo. 457; Jones Tuller, 38 Mo. 363; Clinton v. Williams, 53 Mo. 141.
The evidence fails to show that the plaintiff ever was either in the actual or constructive possession of the land, by himself or agents. His interest was a mere executive interest until entry. Austin v. Coal & Mining Co., 72 Mo. 535, 542. The defendant, Yanstone, from the date of his entry, was in the actual adverse possession of the land, and the right of the plain«tiff to the timber cut from it, or any other of its products after severance, could not be determined in an -action of trover or replevin. Powell v. Smith, 2 Watts, 126; Lehman v. Kellermann, 65 Pa. St. 491. The only remedy, if any the plaintiff has, is against Pruitt for a wrongful violation of his contract.
We have not been able to find any case where timber standing upon land has been treated or considered as personal property. There are cases where the owner of the land, or even the mortgagee not in actual possession, was held entitled to maintain an action of trover for the conversion of property, whicb, prior to its severance, had formed part of the realty, but all these cases, upon examination, will be found to rest on the constructive possession of the owner or mortgagee, as holders of thé' .unquestioned legal title, the possession of the party
As the plaintiff, upon his own showing, can not maintain the present action against any of the defendants, although he may proceed against Pruitt for damages caused to him by the wrongful violation of the contract in another action, we will not remand the cause.
The judgment is reversed and the cause dismissed.
Rehearing
delivered the opinion of the court on motion for re-hearing.
We have been referred to a number of cases, decided by the supreme court of this state, in support of the motion for re-hearing, the mover claiming that our opinion is opposed to them. We have carefully examined them and find that they fail to sustain the claim advanced.
The case of James v. Snelson (3 Mo. 393), the first ' pase cited, is not only inapplicable in its facts, but has-l been expressly overruled in Turley v. Tucker (6 Mo. 583), yhich is the next case cited and relied on, and where the court, on page 586, says that, to maintain an action, of trover the' plaintiff must have a property. either absolute or special, and the possession, or right to the immediate possession, of the goods which are the sub-J ject of controversy. The case of Pearson v. Inlow (20 Mo. 322), merely decides that a person may recover the value of timber cut upon his land, though, by mistake, he led the defendant to believe that he was cutting the
As to the other point made by the motion, that the .contract in writing conveyed an interest in realty, and was followed by possession, we have stated, in our •opinion, that Pruitt was in possession of the land, and so remained. There is not a tittle of evidence that the plaintiff ever entered into possession, and we are not referred by the mover to any part of the record, where such supposed evidence is to be found. We have as.sumed, for the sake of argument, in the opinion, that the plaintiff had an executive interest in the land prior to entry. We assumed this in the plaintiff’s favor, endeavoring to show that, even in that event, he had no right of recovery. Since our attention has again been directed to this point we may add that, on that head, we have assumed even more in the plaintiff’s favor than the statute will warrant. Our statute provides, that, “all deeds or other conveyances of land, or of any estate or interest therein, shall be subscribed and sealed by the party granting the same,” and it is not pretended
The motion f<jr re-hearing is overruled.