84 Mo. App. 405 | Mo. Ct. App. | 1900
The defendant, Mrs. Eveler, is the widow of Henry Eveler, deceased, the latter being the son of Bernard Eveler, also deceased. The son with his wife, the defendant, under some kind of an arrangement not disclosed, by the record before us, occupied a farm of one hundred and seventy-three acres, of which the father was owner, for some eighteen years prior -to his death, which preceded that of his father. The defendant, Mrs. Eveler, has continued to occupy the farm ever since the death of her husband. She has exercised the exclusive dominion over it, renting it to tenants and receiving the rents and profits thereof.
The trial resulted in a judgment for the defendants and the plaintiff has appealed.
The principal ground upon which the plaintiff assails the judgment is that the trial court erred in its refusal to allow him to take a nonsuit. But, on turning to the bill of exceptions, we find that the only motion filed by him relating to the nonsuit was that in which he moved the court to set it aside. If it be taken as a motion for a new trial, as plaintiff contends it should, then we do not find that the plaintiff assigned as one of the grounds thereof the action of the court in refusing to allow him to take a nonsuit. No reference is made in the motion to such action of the court. Not only this, but we do not find that the bill of exceptions anywhere recites the fact that the plaintiff proposed or asked leave of the court to take a nonsuit and that such leave was disallowed, or that there was any exception preserved to the. action of the court in refusing to allow such nonsuit to be taken. It is thus seen that if the court did refuse to
As far as we are able to understand, from an examination of the record, the defendant, Mrs. Eveler, after the death of her husband was in possession of the farm without any semblance of right. It nowhere appears that she had any license or other authority from the father after the death of the son, or from the father’s executor, to occupy the farm. "While so occupying it she rented it to Keller who produced thereon the crops claimed by the plaintiff. Under the well-established law of this state we can not discover that the acquisition of the legal title to the farm by plaintiff’s purchase and deed gave him any title to the crops grown or growing thereon. Mrs. Keller was in the exclusive occupancy of the farm when the crops were planted and when they matured. When the plaintiff brought his suit the wheat and oats had matured and the share of Mrs. Eveler delivered to her. As previously stated, it does not appear that the corn was taken out of her possession under the writ.
The description of the corn in the complaint was, that plaintiff was entitled to the possession * * of corn of about the value of one hundred dollars.” This description, it seems to us, is so vague and indefinite as to amount to no description at all. How could the officer who was required to execute the order of delivery identify the corn the plaintiff claimed? No wonder he made no seizure of any corn under the order. A judgment for the corn by such description would be ineffective and could not be enforced. Cobbey on Eeplevin, see. 1099.
It may be doubted whether or not, under our statute, there was a triable issue in the case as to the corn, since there was no seizure. Haeger v. Marcus, 5 Mo. App. 565.
The parties themselves, however, by their instructions submitted issues in respect to it. The jury were told by an
Mrs. Eveler was in possession of'the land at tbe time tbe crops were planted and continued so until after they were matured and severed. It would seem, therefore, that under tbe adjudications in this state tbe plaintiff, who bad in tbe meantime by. purchase acquired tbe legal title, but not tbe actual possession, did not thereby acquire tbe title to such crops. McAllister v. Lawler, 32 Mo. App. 91; Adams v. Leip, 71 Mo. 597; Jenkins v. McCay, 50 Mo. 348.
Tbe plaintiff objects that there was no evidence introduced justifying tbe verdict of the jury as to tbe damages assessed for tbe detention of tbe property. It is a sufficient answer to this to say that tbe defendant, Mrs. Eveler, testified, without objection, that she was damaged in tbe sum of one hundred dollars. As to this, she was fully cross-questioned by plaintiff. There was no contradictory evidence offered. Tbe finding of the jury was for a much less amount. It will not do to say, therefore, that there was no evidence to sustain tbe verdict.
Tbe value of tbe wheat and oats taken under tbe writ was admitted by tbe answer. There was no issue as to tbe value of them. It was not necessary for tbe defendants to give the petition and answer in evidence. These pleadings were read to the jury and were therefore before them.
The judgment is for the right party and must be affirmed.