70 Mo. 52 | Mo. | 1879
This was an action of ejectment, tried in the Cape Girardeau court of common pleas, to which court it was taken from Scott county. The petition averred an unlawful entry of defendant on the 5th day of January, 1874, on the northwest quarter of section 30, township 30, range 14 east, and was filed August 1st, 1874.
In addition to general denials, the answer set up as a
An additional defense was set up in the answer that in the month of January, 1855, and for a long time prior thereto, said Claude Benna, their ancestor, held and occupied said real estate under the laws of the State, and in the year 1858 said Claude Benna pre-empted said real estate from the county of Cape Girardeau, the said county being then the owner of said land; that said county of Scott pretending to own some interest in said real estate, in the year 1864, pretended to sell the same to one Alexander "Waugh, and that said plaintiffs now claim under and from said Alexander "Waugh; that after said pretended purchase said Waugh instituted an action of trespass in the circuit court of Cape Girardeau county, against said Claude Benna for an alleged trespass upon said real estate, and that said action came on to be tried in said court, and the title of said "Waugh and Benna was fully litigated, and that in said action judgment was rendered in favor of said Henna, and they plead said adjudication as an estoppel to
The replication, in addition to a general denial of every allegation of defendant’s answer, s£ts up that at the May term of the Mississippi circuit court, 1869, an action of ejectment on change of venue from Scott county was pending in that court; that in this action Ilenry Vollmers was plaintiff and Claude Benna, Joseph Benna and Eugene Benna were defendants; that in said action the same identical matters were in issue that these defendants now set up; that the verdict was for plaintiff, being that the said Vollmers was the owner and entitled to the possession of the real estate described in the present petition; that after-wards a judgment was rendered in accordance with said verdict, that the said Vollmers recover the possession of said real estate; that said action was taken by writ of error to the February term of the second district court, and was affirmed, and is still in full force, and said Vollmers, thereafter, obtained possession and retained the same until he sold and delivered said realty to the present plaintiffs, and that afterwards the defendants herein, against consent of plaintiffs herein, wrongfully and unlawfully entered.
On the trial the plaintiffs read in evidence a patent from Scott county to Alexander Waugh dated October 27th, 1864, for the land in controversy, and a quit-claim deed from Alexander Waugh to Henry Vollmers for said land dated November 21st, 1859, and a deed from Vollmers and wife to George G. Kimmel, dated May 14th, 1870, recorded Juno 10th, 1872, anda deed from George Kimmel and wife for an undivided half of said land to E. A. Kimmel, dated January 31st, 1871; also the opinion of the second district court affirming the judgment of the circuit court of Mississippi county in the case of Vollmers v. Benna et al. On the part of plaintiffs, it was established by parol evidence, that under the execution on the judgment in
The defendants gave-in evidence, objection being made by plaintiffs and overruled, a deed dated 9th day of October, 1865, from the sheriff of Scott county for the land in controversy, to Claude Benna. This deed was made in pursuance of a judgment rendered the 13th day of December, 1860, against Alexander Waugh, and an execution thereon in 1865, and a levy in September of 1865 and a sale to Benna. They also read in evidence the order of the Cape Girardeau county court directing the county surveyor to survey the south boundary of the county, and the report of the surveyor dctailingtlic difficulties of finding the main channel of the Big Swamp. This was objected to as irrelevant, and for the reason that the matter was adjudicated between II. Vollmers, grantor of plaintiff, and Claude Benna, the ancestor of defendants. It appeared from oral testimony that the deed from the sheriff of Scott county to Claude Benna, conveying the title of Waugh in 1865, was not offered in evidence in the case of Vollmers v. Benna. The plaintiffs renewed their objections to the introduction of any evidence tending to prove a title by pre-emption or under the statute of limitations, or tending to prove that the land in dispute was or was not over in Cape Girardeau county, or tending to prove any pre-emption right in
The parol evidence of defendants showed that Benna, tho father of defendants, had lived on this land since 1854; that the land was north of the main channel of the Big Swamp, and eonsequently in Cape Girardeau county until an act of the Legislature was passed (Sess. Acts 1865, pp. 310, 311,) establishing a new line between Scott and Cape Girardeau coifnties, and by this line locating the land in Scott county; that Claude Benna claimed this land in 1854 and went to Jackson, the county seat of Cape Girardeau county, to pre-empt this laud, but the county court of Cape Girardeau refused to grant a title until tho disputed boundaries were settled. In the meantime Alexander Waugh got, in 1864, a patent from Scott county, and in 1865 the land was located by the Legislature in Scott county.
Tho following instructions were given for plaintiff: 2. If the jury believe from the evidence that Vollmers obtained possession of the realty from the deputy sheriff of Scott county in his official character by virtue of a writ of restitution and judgment in ejectment, and that Vollmers transferred such possession to Kimmel, and if you further believe from tho evidence that such possession lasted for three years or more in Vollmers and his grantee, Kimmel, then the defendants had no legal right to enter upon said land without the consent of Kimmel, and any such entry, without said consent, would be forcible and illegal, and you should find for plaintiffs unless defendants have established a title.
3. It is necessary for the defendants to show, to your satisfaction, that, at the time of the sale of tho realty by the sheriff’ of Scott county, Waugh, the execution debtor, had an interest in the land so sold; and if you. believe from the evidence that at the time of said sale Waugh had no interest in said realty, then the sheriff's deed conveyed no interest, and you should find for the plaintiff.
5. If you find for the plaintiffs, you will assess the damages from the evidence that plaintiffs may have sustained for all waste and injury done by defendants and the rents and profits, from the time defendants took such possession to the present time; and if you find for the plaintiffs you will further find the monthly value of such rents and profits.
The following instructions were given for the defendants : 1. The court instructs the jury that if they are satisfied from the evidence that the land in controversy was patented to Alexander Waugh, Sr., in 1864, by the county of Scott, and that the deed from Waugh to Vollmers is a mere quit-claim deed made in 1859, then the title acquired by Waugh in 1864 will not inure to Vollmers and those claiming under him.
2. The court instructs you further, that if you are satisfied from the evidence that the interest of Waugh, acquired by patent from Scott county, was, by a sale of the sheriff of Scott county, conveyed to Claude Benna, and that defendants are his heirs, then you should find for the defendants, unless the plaintiffs have established a title superior to the title of defendants.
8. The court further instructs you that, although you may believe from the evidence that Vollmers recovered a judgment for the premises in controversy, yet the mere fact that such judgment was recovered would not authorize
5. The court further instructs you, that if the premises in controversy, prior to the year 1865, were a portion of the county of Cape Girardeau, and the said premises were swamp land granted by tho State to the counties in which situate, tho county of Scott could not legally sell, convey or patent the same while a part of the county of Cape Girardeau.
6. The court further instructs you, that tho former action of ejectment instituted by Vollmers, is no bar to the right of the defendants to make any and all.defenses they may have as against plaintiffs, Kimmel, in this case, unless you still further believe from the evidence that the defense in this case is in all respects and precisely tho same as the defense made in the case of Vollmers.
7 The court further instructs you, that the middle of tho main channel of the swamp was the boundary between Cape Girardeau and Scott counties prior to 1865, and that if you believe from the evidence that the said described real estate was situated north of the main channel of the Big Swamp, then you are authorized to find that the said real estate was situated in the county of Cape Girardeau until the 9th day of February. 1865, when the boundary line was changed.
8. The court further instructs you, that if you oelieve from the evidence.that the county of Scott, prior to 1865, sold by patent the premises in controversy, and that tho county of Cape Girardeau did not sell said land while situate in said county ; and further, that no one acquired any superior right and title to said real estate while situate in the county of Cape Girardeau, that the title acquired by Scott county by virtue of such change of boundary will
There was a verdict and judgment for the defendants.
But it is unnecessary to multiply authorities on this subject, as the position is not disputed; but it is urged that since the act of 1807, (Terr. Laws, eh. 38,) abolishing lease, entry and ouster, the reason for the rule no longer exists, and the rule should, therefore, be abandoned. The act of 1807 is as follows: “ In all actions of ejectment the plaintiff shall declare in his proper name and instead of the fictitious suggestion of lease, entry and ouster, shall state that he is legally entitled to the premises, and aver the ejectment and trespass of the defendant, and the defendant, in his defense, plead not guilty, or plead his title according to truth; the parties having the same right of pleading, joining issue and demurring as in other cases,” &c. In the revision of 1825, (see title, ejectment,) this
In the revision of 1855 the act concerning ejectment was copied from former revisions, with the exception of a single section, which was introduced as a new provision, and was obviously designed or supposed to change the law as it stood before in regard to the bar of a judgment. Section 33 provided that “ a judgment, except of non-suit, in an action authorized by this act (ejectment) shall be a bar to any other action between the same parties, or those claiming under them, as to the same subject matter.” Just two years afterwards, at the next session of the Legislature, this section 33 was repealed. See Sess.-Acts 1857, p. 34. And so tho statute law of this State has stood up to the present day.
Now let us see what construction has been .given to this legislation by the courts of this State. The first case in which the question comes up directly, and is decided clearly, is in 1862, in the case of Slevin v. Brown, 32 Mo. 176. The circuit court, in that case, had given the following instruction: “If the plaintiff, in this case, claims
Thus it will be seen that from 1807 up to the present time, a. period of over seventy years, tho statute law concerning this action of ejectment, both before and after the practice act of 1849, with the exception of an interval of two years from 1855 to 1857, has remained substantially the same, and that the construction given to these acts by the courts has been equally uniform in regard to the effect of abolishing fictitious parties in 1807. That no case occurs in our reports previous to 1862, merely tends to show that in the opinion of the profession the common law rule concerning judgments in ejectment was the law of this State, except when a different one was enacted in 1855, and the repeal of that enactment shows clearly that after an experience of two years the common law rule was preferred. The opinion of this court also in Patterson and wife v. McCamant, 28 Mo. 210, though not touching at all upon the question, is evidently based on the assumption that the common law rule prevailed at that date, for it is manifest that no particular importance could be attached to the nature and efficacy of bills of peace if a single ejectment settled the title. It is a mistaken assumption that the sole reason for the ancient rule in regard to the want of finality of judgments in ejectment was the employment of fictitious parties in the proceeding. A judgment in ejectment confers no title upon tho party in whose favor it is given. “It is, therefore, manifest,” observes Mr. Adams in his treatise on ejectment, “ that the judgment can never be final, and that it is always in the power of the party failing, whether claimant or defendant, to bring anew action.” This reason is just as applicable
It is true that since the courts have allowed parol testimony to establish the matters actually litigated in a case, without regard to the issues made by the pleadings, a change from the old law might seem more plausible and reasonable than when the courts held that to create an es-toppel the precise point of the judgment must be made to appear from the record alone. And we do not undertake to say that such an innovation might not be wise and beneficial, although the experiment in 1855 did not prove an acceptable one.
What is said by Lord Ellenborough in Outram v. Morewood, 3 East 358 and 5 T. R. 121, that a recovery in one action was a bar to another, and that this applied not to personal actions alone, but to all actions whatsoever, quoad their subject matter, is confessedly the law, but only shows that to make a judgment in ejectment conclusive of a title which has been investigated and decided, the nature of the action must be essentially changed. There is no inconsistency or contradiction between the decision of Lord Ellenborough in Outram v. Morewood and that of Lord Mansfield in the case of Atkyns v. Hord. No objection can be made to the rule laid down by Mr. Justice Miller in Miles v. Caldwell, based as it was on the 33rd section of the act of 1855, concerning ejectments, and upon the doctrine that the State courts shall be permitted to settle for themselves all questions affecting the title to real estate, and that the Federal courts would follow such rules. It is not necessary to a concurrence in this opinion that wo should
We dismiss this point with extracting some remarks of Judge Roane of tho court of appeals of Virginia in 1819, which seem to be pertinent. The case before us being an ejectment, (and tho fourth ejectment between the same parties,) no verdict and judgment which may have taken place in the former actions can be relied on as a bar in this. If, however, any decision has been given, and particularly by the court in the last resort, in a former case, it is to be respected as an authority. It is to be so respected if it even occurred between other parties. * * This consequence grows out of our system of jurisprudence, which is based and bottomed upon decisions and precedents. While this system, thus understood, affords a check to the arbitrary discretion of the judges, it also sets up a standard by which our citizens may govern themselves in the formation of their contracts. The solemn decisions of our courts, therefore, especially of the court in the last resort, ought not to be lightly departed from. In the case of recent decisions, however, if they be' erroneous, they ought to bo corrected. They ought to be