14 Mo. App. 39 | Mo. Ct. App. | 1883
delivered the opinion of the court.
This is a proceeding to quiet title, under section 3562 of the Eevised Statutes. The circuit court gave judgment for the defendant.
The two lots in controversy have never been occupied otherwise than by the several acts of fencing hereinafter described. The plaintiffs undertook to show a chain of title to the fee in themselves, of a larger tract, including these lots, and an actual occupancy by their tenants of other lots within the tract, but not in the same block with the lots in controversy. The court properly excluded this testimony. There is no question about title in this proceeding. All such questions are distinctly excluded by the very nature and purposes of the action, which assumes that another suit is necessary to try the title; wherefore the defendant should be directed to begin it. The statute does not require the plaintiff to show that he has any title; but only that he claims “ an estate of freehold, or an unexpired term of not less than ten years,” and has the premises in possession. As to what he claims, an averment in the petition will suffice, and will not be issuable, nor can there be any proof of title for the mere purpose of raising the legal presumption of possession, which follows the fact of title. This presumption originates in the courts for certain purposes looking to the ends of justice. It will not satisfy the statute, which demands, not a judicial presumption, such as may arise in the progress of litigation, but the fact of possession, really existing before the action is begun. A man may have an undisputed title to a tract of land which neither he nor any one claiming under or acting for him has ever occupied, or even seen. The courts, for the purpose of protecting him against injury by trespassers, will recognize a constructive possession in his favor. But there is no real possession in the case; and, therefore, nothing that would satisfy the statute we are considering.
Counsel for the plaintiffs argue that they could not sue in ejectment, because the lots were unoccupied, and it was impossible to show a hostile possession in the defendant. They refer to a number of cases in which possession is defined with reference to the statute of limitations, or the action of forcibly entry and detainer. But we know o f no case in which it is held that the same open, notorious, actual, exclusive, adverse and continuous possession so defined, must be fixed upon the defendant in an action of ejectment. On the contrary, it is- held that one whose enjoyment of his real estate is wrongfully interfered with, may, at his election, often treat the wrong-doer as a disseisor, although not himself actually ousted or dispossessed. Smith v. Burtis, 6 Johns. 215; Prescott v. Nevers, 4 Mason, 329. In such a case of election, however, the party suing in ejectment must abandon his possession while the action is pending. Munroe v. Ward, supra; Burns v. Lynde, 6 Allen, 312. In the ancient action of ejectment, it was sufficient to allege in the declaration a mere entry by the casual
The court, upon the plaintiffs’ application, gave three instructions in general terms, and refused one to the effect that if, at the time of filing the petition herein, the plaintiffs had the premises described therein enclosed or fenced, then they were in the actual possession of said premises. That this refusal was proper must be apparent from what we have already said.
The instruction, if given, would have precluded any finding upon the material issue, whether the hurried fencing done by the plaintiffs was indicative, not of an actual and peaceable occupancy, but of a mere interference with the ancient prior possession of the defendants, designed only to make an illusive show for the purpose of this suit. The instruction seems to assume that the making of a fence is conclusive evidence of possession. On the contrary, it may, according to circumstances, be as clearly a trespass, as.the unauthorized felling of trees or removal of buildings. Whether it was so or not, in the present case, was a question of fact for the court, sitting as a jury, to determine from the evidence. Upon the court’s refusal of the last-mentioned instruction, the plaintiffs took a non-suit, which the court afterwards declined to set aside. Some exceptions were saved by the plaintiffs to admissions and exclusions of testimony. The rulings of the court on these points were in entire harmony with .the views herein set forth.
The judgment is affirmed.