14 Mo. App. 45 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This is an action of forcible entry and detainer. At the close of the testimony, upon the giving and refusing of instructions by the court, sitting as a jury, the plaintiffs took a non-suit, which the court afterwards refused to set aside.
The whole controversy turns upon the question whether the plaintiffs were in peaceable possession of the premises, at the time of the alleged forcible entry by the defendants. The testimony tended generally to show that, until on or about October 13, 1881, when one or more of the defendants began to use the lots as a stoneyard, they had lain vacant, and had never been occupied for any useful purpose. The plaintiffs’ testimony tended to prove that in April or May, 1878, they enclosed’the lots with a board fence, which remained standing until August of the same year; and that, on the morning of October 13, 1881, they closed the lots in with posts about twelve feet apart, connected by barbed wire in three strands. These posts and wires were removed by other persons, possibly the defendants. Within forty-eight hours the defendants erected a more substantial fence, and continued to occupy the prem
Every legal procedure is intended for the redress or prevention of some wrong or grievance; or, in another form of expression, for the enforcement of some right. Procedures are divided into classes, each being adapted to a particular method of protecting a specific class of rights. Thus, ejectment is designed to protect and enforce the right of possession derived from ownership or title; while the action of forcible entry and detainer sustains only the right to remain in a possession peaceably acquired and held? until this shall be determined by due course of law. Possession, in either case, means a real dominion, capable of devoting the property to some beneficial use, however small, by him who enjoys it. Procedure must be inv’oked in behalf of such dominion, as a substantial right, whose enjoyment is invaded, or withheld; and not for the mere purpose of securing a vantage ground for other litigation. The suitor who employs it for the latter purpose, attempts a fraud upon the law. He would have the courts employed, not in administering justice between litigants, but in rewarding only the most skillful strategist. Such a case is exactly presented by the party who relies on what has been aptly called a “scrambling possession.” It is a possession without anys avor of the legitimate enjoyment of property rights, and neither sought nor secured on any such account; but which is only scrambled for, by one party or by both, because of some supposed advantage it may command in a pending struggle. The uniform course of
The plaintiffs complain, on authority of DeGraw v. Prior, (53 Mo. 313), that the court erred in giving an instruction that, upon the evidence, the plaintiffs were not entitled to recover. The authority does not apply. The court in that case gave no other instruction, and undertook to dispose of all controverted questions of fact, about which there was substantial testimony on both sides, by a general declaration of the result. The supreme court said that this was equivalent to taking issues away from a jury, upon which there was evidence proper to be left with them for their finding. The objection does not exist in the present case. The court here gave full instructions, or declarations of law, covering every point upon which an instruction could properly be given. Thus no issue was taken away from the trier of fact, but every one was submitted upon a hypothetical statement, with its appropriate conclusion of law. The general finding was thus fully elucidated, and was free from the objections made by the supreme court in the case of DeGraw v. Prior.
The judgment is affirmed.