88 Mo. 574 | Mo. | 1886
This is an action of ejectment to recover certain described land in Carroll county, Missouri. The petition is in the usual form. The answer admits the possession of defendant, and is otherwise a general denial. The cause was tried before Hon. John L. Mirick, sitting as a special judge, and was tried by the court without the intervention of a jury. The court found for the plaintiff for an undivided one-third of the land described in the petition; assessed the damages at the sum of two hundred dollars, and the rents and profits at the sum of $16.66| per month, and rendered judgment in the usual form from which defendant has appealed.
Plaintiff and defendant are tenants in common in the premises in suit, the plaintiff being the owner of an undivided one-third interest'in the land, and the defendant the owner of the undivided two-thirds interest therein. This, however, does not appear by the pleadings, but only by the evidence in the cause. The plaintiff in his petition does not set out the true interests of the parties, either plaintiff or defendant, according to their respective titles, but claims the whole tract and the right of possession to the whole tract; and it is contended in the first place for defendant that he cannot recover under such a petition, which treats the defendant as a trespasser and stranger, and wholly ignores the rights of defendant and tlie relation of co-tenancy. As to this it may be said, that the action of ejectment is a remedy afforded by the law where one tenant in common has been dispossessed by his co-tenant from the whole or any portion of the lands held in common. Our-statute declares what
/ If plaintiff had declared on his title as it in fact was; and demanded possession of his true interest, there could be no doubt that such denial in the answer would have been an admission and sufficient evidence of ouster. The petition, however, being in the usual form employed in actions of .ejectment, ignores the relation of co-tenancy and treats the defendant as an entire stranger and trespasser, and claims the right to the sole and exclusive possession of the whole tract. The answer denies these allegations and it is, to say the least of it, doubtful whether there is under this state of facts any denial of the co-tenancy which is not charged to exist in the petition, and in which there is no demand of the possession
Plaintiff had not, it is true, any right to any particular portion of the land, but his demand to be let into the possession of the premises, and to which he was as much entitled as defendant, must be held and construed to mean a demand of possession according to his right as tenant in common, and this demand .followed by a refusal •on the part of defendant to comply therewith, is satisfactory evidence of an ouster. The letter of defendant to plaintiff to which reference is made, is not in the transcript nor the substance given, but it may be remarked as to this that the court having the letter before it' gave a ■declaration of law that the letter read in evidence, in regard to defendant’s claim to the land in suit, was oí itself sufficient to constitute ouster of plaintiff. We see nothing in the record authorizing us to question or disturb the finding of the trial court, that the defendant, who was in thfe sole and exclusive possession of the entire tract, had refused to suffer the plaintiff to occupy with
Some question is made as to the plaintiff’s right to recover damages and rents and profits in this action, but if plaintiff had the title and was entitled to recover his undivided third interest in the land, he was entitled to recover also damages and rents and profits from the date of the ouster. Where the plaintiff prevails in the action of ejectment, damages and rents and profits follow under the provisions and subject to the limitations in section 2252, Revised Statutes. Objection is made also to the amount of damages assessed. The calculation which defendant claims to be correct, excludes the forty acres not in cultivation upon the theory that the evidence does not show the land not in cultivation to be of any. value. Plaintiff’s evidence, however, estimates the land, that is the entire tract, and on the average at $2.50 per acre, whereas the estimate made by defendant’s witnesses is about the same, but is confined to the cultivated land. The trial court has adopted the former basis in the assessment of damages and the sum of two hundred dollars for one year from date of suit to the date of judgment is on this theory correct, for the undivided third of the two hundred and forty acres and the sum of $16.66f as the value of monthly rents and profits is on this basis likewise correct. We see no such error in the court’s action in the matter of giving and refusing declarations of law as calls for and requires us to reverse the judgment upon that ground. Even if some of them are to some extent inaccurate, yet the judgment is, we think, manifestly for the right party and should not be disturbed, and is accordingly affirmed.