190 Mo. App. 206 | Mo. Ct. App. | 1915
This is a suit for unlawful detainer brought in a justice of a peace court and removed by certiorari to and tried in the circuit court of Wayne county, Missouri. The plaintiff obtained judgment for possession and damages and defendant has appealed. The sole question presented here is whether the plaintiff had such possession of the premises in controversy as will sustain this action at the time defendant “without force by disseizin obtained possession of the said premises” on February 26, 1914. The land in controversy is farm land, having a house and barn thereon and some forty acres or more in cultivation. It is described as lots two and three of a certain quarter section, but was used as one farm, no one knowing just where the- dividing line is between the two lots. It appears that the dwelling-house is near this dividing line and probably on lot three, while the barn is on lot two. It is conceded that one A. A. Robinson had been in
The defendant offered no evidence and in no way-attempted to justify or explain his action in thus taking possession. The only hint found in the record that defendant was other than a pure trespasser, without any claim of right, is that he claimed to plaintiff that he “was an heir at law to the land.”
The case was tried to the court without a jury and no declarations of law being asked by plaintiff the court gave all those asked by defendant and found against him on the facts. These declarations of law required the court to find that plaintiff was in actual possession of the land at the time defendant entered thereon; that neither the title nor right to possession is involved but only plaintiff’s actual possession and defendant’s entry thereon and ousting him from possession ; that the burden of proof was on plaintiff as to these issues and unless plaintiff was in the actual bonafide possession of the land at the time defendant entered thereon the finding'must be for defendant.
The defendant cites many authorities to sustain these propositions of law, but as defendant got the full benefit of same, so far as the law is concerned, he cannot complain that the court tried and determined the case on a wrong theory of the law. The defendant’s entry onto these premises is conceded and if plaintiff was then in possession such entry was clearly wrongful and amounted to a disseizin. The whole question therefore turns on the question of fact as to plaintiff’s possession-and we have given the salient facts. The defendant’s argument that no sufficient possession was shown on plaintiff’s part to entitle him to recover is largely based on the fact that plaintiff had not taken up his residence on the land and that same was there
The law as to what possession is necessary to maintain this action is stated in 19 Cyc. 1130, thus: “Actual pedis possessio or residence on the premises at the time of the forcible entry complained of is not essential to the maintenance of the action. The possession to which this summary remedy applies is not confined to the pedis possessio or actual inclosure of the occupant. It applies to any possession which is sufficient to sustain an action of trespass. . . . The owner is not bound to be continually on his land either in person or by agent, or to station his servants there to keep-intruders away. An entry coupled with such acts of ownership as clearly indicate his intention to take and hold permanent possession will be sufficient to enable him to maintain this form of action to repel an unlawful intrusion. ’ ’ That plaintiff need not reside on the land or actually occupy any building thereon or even have it enclosed in order to have actual possession sufficient to maintain this action is well settled. [Keen v. Schweigler, 70 Mo. App. 409, 422; Hinniger v. Trax, 67 Mo. App. 521, 526; Leeper v. Baker, 68 Mo. 400, 405; Walser v. Graham, 60 Mo. App. 323, 326.]
What is actual possession is a mixed question of law and fact and varies in different circumstances, depending on the character and condition of the property. The question of intent, connected with overt acts, is of much importance. Thus, in Meriwether v. Howe, 48 Mo. App. 148, 155, the court said: “The law is well settled that overt acts indicating dominion and purpose to occupy, and not to abandon, the premises will constitute actual possession.” In Miller v. Northup, 49 Mo. 397, 400, the court used this language: “But it is
Error is assigned because of admitting in evidence the lease made by A. A. Robinson, the owner of the land, to this plaintiff on the ground that neither the title nor the right to the possession of the land is in issue. Such is the law and so the law was declared in the declarations given. But this does not mean that the lease or other evidences of title or right to possession are not to be admitted for any purpose. While the lease does not prove possession by plaintiff as lessee, it is itself an act in transferring possession from A. A. Robinson to plaintiff and gives character to plaintiff’s acts in dealing with the land and shows his intention with relation thereto. It extends actual possession of a part to all the land conveyed. Title papers are frequently put in evidence for this purpose. [19 Cyc. 1165; Keen v. Schweigler, 70 Mo. App. 409, 421; Prewitt v. Burnett, 46 Mo. 372.]
If defendant owned an interest in this land the law requires him to establish his right in an action brought for that purpose. He cannot assert his right by any short cut such as taking possession of the land in the manner here shown. The law does not permit one to redress his grievance with his own hand. [Meriwether v. Howe, 48 Mo. App. 148, 156.]
The judgment is for the right party and will there-' fore be affirmed.