56 Mo. 46 | Mo. | 1874
delivered the opinion of the court.
This was an action for unlawful detainer brought under the 3rd section of the statute of Forcible Entry and Detainer. (Wagn. Stat., 642.) The plaintiff, Mary IT. Kingman, was a
The plaintiff, Mary U. May, before her marriage with King-man, on or about the 20th of August, 1870, demanded the possession of the premises in writing of the defendants; which demand was made before the commencement of the suit. Another demand was made byNelson Kingman and said Mary after their marriage in March, 1872, which was also before the commencement of the suit. There was evidence tending to prove that Hatchett held possession by the permis
The defendants also offered in evidence a transcript of pr°* ceedings and a judgment rendered by a justice of the peace in the case of Kingman and wife vs. Abington, and the record of the same case, when it had been taken and tried in the Circuit Court by appeal, and the papers filed in said cause, and parol -evidence to prove that the subject matter in that
The court, at the close of the evidence, at the request of the plaintiffs gave several instructions, and refused several asked for by the defendants. To the giving of said instructions, and to the refusing of those asked by the defendant, the defendant at the time excepted. After a verdict and judgment in favor of the plaintiffs, the defendants filed their several motions for a new trial and in arrest of judgment, assigning all of the usual grounds for said motions. These motions being severally overruled by the court, the defendants saved their several exceptions thereto and appealed to this court.
The principal questions presented in this court are as to the. propriety of the rulings of the court below in excluding from the evidence in the case the deed of trust and trustee’s deed offered in evidence by the defendant, and in excluding the transcripts of the judgment and proceedings had before the justice of the peace and in the Circuit Ct. in the case between Kingman and wife and Abington; and also in rendering a joint judgment against both of the defendants for the rent and profits of the premises during the whole time that they were detained from the plaintiffs, although one of the defendants had only been in possession for a portion of the time.
Exceptions were also taken to the rulings of the court in giving and refusing instructions; but if the court properly excluded the evidence referred to, then the instructions refused being predicated on the excluded evidence were properly refused, and those given were substantially correct, and therefore it will not be necessary to further refer to the instructions.
It is insisted by the defendants, that the deed of trust and
The next question is, as to the exclusion of the transcripts
.The next ground of objection made by the defendants is, that the judgment for rents and profits was improperly rendered jointly against Abington and Hatchett, when Hatchett had only occupied the premises for a part of the time, and came into the possession long after Abington had been holding the possession of the premises. A joint judgment would ordinarily be improper under such circumstances; but in this case each and all of the parties who were in possession of this lot and house, seem to have been put into and to have taken the possession in pursuance of one general design; that they were all acting in concert to effect the same object, which was to hold the possession of the land for McElheny as his agents, so as to transfer the burden of proving title to the plaintiffs in this case,, in place of a resort to an action of ejectment, as the law contemplates, by McElheny. He took this plan to force the plaintiffs to sue, and the defendants went into possession, without paying any rent to McElbeny but for the mere purpose of keeping the plaintiff out of possession, under an arrangement that McElheny should save them all harmless. These defendants acted in concert to accomplish a common purpose; they acted together and defended the suit together, and ought to be responsible for each other’s acts. There were some other minor points raised in the case, but it is not thought that they have any bearing on its merits.
the judgment is affirmed.