Kochling v. Daniel

82 Mo. 54 | Mo. | 1884

Philips, C.

This is an action in ejectment to recover the possession of the northeast quarter of section 19, township 52, range 5, situated in Audrain county. Petition is in the usual form. The plaintiffs are minors, suing by their next friend. The answer alleged that the land belonged in fee to one Joseph Kochling, that lie died in 1871 seized of this land as a homestead leaving his wife and children surviving, the plaintiffs herein being his minor children. The widow and said children occupied said land as a homestead. She becoming indebted for taxes on said land and otherwise mortgaged the same to raise money. Under this mortgage the land was sold and the defendant claims title thereto under the purchaser at said foreclosure sale. That thereafter the said widow removed from the land vTith her minor children surrendering the possession to defendant. To this answer the plaintiffs demurred on the ground that the facts pleaded constituted no defense to the plaintiffs’ action. The court overruled the demurrer. Plaintiffs declining to plead further, the court entered up judgment for defendant on said answer. From that judgment plaintiffs prosecute this writ of error.

The principles of law involved in this case have been fully considered and determined by this court in the cases of Canole v. Hurt, 78 Mo. 649, and Roberts v. Ware, 80 Mo. 363. Adhering to those decisions, the circuit court erred in overruling the demurrer to the answer and rendering judgment thereon for defendant. The answer constituted no defense to the action, and judgment should be rendered thereon for the plaintiffs.

The judgment of the circuit court is accordingly reversed and the cause remanded to be proceeded with conformably to this opinion.

All concur.