McAnaw v. Clark
67 S.W. 249
Mo.
1902
Check Treatment
MARSHALL, J.

This is an action to recover possession of lots 10 and 12 in city block No. 57, in Cameron, Clinton county, Missouri. It is a second suit in ejectment for the same land, between the same parties, based upon precisely the same title and upon the same evidence. The former suit resulted in the same rulings of the trial court, followed by the nonsuit of the plaintiff and his appeal to this court, where the judgment below was affirmed, in an elaborate and exhaustive opinion by Burgess, J. (McAnaw v. Tiffin et al., 143 Mo. 667), Mrs. Clark being the only real párty to that suit, as she is the only party to this. The title, the facts and the testimony are fully set out in the opinion in that case, and they are the same as are presented by this record, and hence need not be restated here. The only difference even intimated by the plaintiff between the testimony then and now adduced is, that the guardian testified in this case that he notified Samuel Matthis, Jr., and his wife, Ada L. Matthis, to vacate the rooms they occupied in the hotel on the premises' in controversy and that they did so, but the guardian is manifestly in error in this regard, for the lessee of the hotel testified that they did not vacate at any time during the existence of the guardianship, nor until they conveyed the property to Tiffin, on January 6, 1892. The guardianship terminated with the death of Samuel Matthis, Sr., on September 30,1891. This, therefore, makes the case no stronger or different for the plaintiff than his prior case, which was adjudged against him. Upon the authority of that decision, the judgment of the circuit court in this case must be affirmed.

It is apparent, however, that the plaintiff has mistaken his remedy. He can not maintain ejectment until the deed *447from Samuel Matthis, Sr., to Ada L. Matthis, under which, by mesne conveyances, the defendant holds title, is set aside, and that deed can only be set aside in equity. In ejectment, the right of possession alone is determined, and that is settled by the record title or by title by limitation based upon possession. The cases relied ‘on by 'plaintiff holding that a disaffirmance of a voidable deed may be by re-entry or by an action in ejectment, apply only to minors. [Craig v. Van Bebber, 100 Mo. l. c. 589, and cases cited; 18 Am. State Rep. 664.] Those cases and the rules they announce have no application to deeds made by insane persons not under guardianship. [McKenzie v. Donnell, 151 Mo. l. c. 454, et seq.]

The judgment of the circuit court is affirmed. ■

All concur.