| Mo. Ct. App. | Nov 22, 1892
Pbilena Sage, the wife of George Sage,, is the owner of certain real estate adjoining the town of Arbela, in Scotland county, and certain lots in the town. She and her husband brought this action against the defendants under section 3922, Revised Statutes, 1879, which reads: “If any person shall voluntarily throw down or open any doors, bars, gates or fences, and leave the same open or down, other than those that lead into his own inclosure, or shall voluntarily throw down, open or remove any partition fence, without
I. In the complaint filed before the justice, the land was described as beginning at a point twenty-five rods west of the northeast corner of the southwest quarter of section 4. The circuit court permitted the plaintiffs to amend their petition in respect of the description of the land as follows: “Beginning at a point twenty-five rods west of the northeast corner of the southwest quarter of the southwest quarter of section 4.” The italicized words were added to the description. The defendants insist that this amendment had the effect to substitute 'a new cause of action, and this constitutes their first assignment of error. In the case of Callaghan v. McMahan, 33 Mo. 111" court="Mo." date_filed="1862-10-15" href="https://app.midpage.ai/document/callaghan-v-mmahan-8001244?utm_source=webapp" opinion_id="8001244">33 Mo. 111, the land sued for was described in the petition as the northwest quarter of the southeast quarter of a certain section. After the close of the evidence the court permitted the plaintiff to change the description by amendment so as to make it read the southwest quarter of the northeast quarter of the section. The supreme court held that the statute was broad enough to embrace the amendment. Under
. II. The defendants claim that they ought not to 'be liable to this prosecution for the reason that, in the removal of the fences of the plaintiffs, they were acting under the lawful authority of the town of Arbela in this: That these fences occupied a portion óf Tenth .and Wheatley streets in the town; that the plaintiffs had been requested by the town authorities to remove them, which they had declined to do;' that, thereupon, the defendants were directed by the town board to remove the obstructions from the said streets, and that it was in the performance of this duty that the defend.ants removed these fences from Tenth and Wheatley streets. The court in its instructions told the jury that Tenth street was legally dedicated to public use, and that there could be no recovery for the removal of that portion of the fence which obstructed that street. The court also declared as a matter of law that Wheatley street had never been legally condemned or dedicated to public use so as to affect the plaintiffs’ property rights, and that, if that portion of the fence located on what the witnesses designated as Wheatley street was torn away by the defendants, and that fence served to inclose' land belonging to Philena Sage, and she and her husband lived on the land at the time, then the verdict should be against the defendants for the penalty of $5, provided by statute, and also for the damages done in tearing down the fence as shown by the evidence. The evidence bearing on the subject of the last instruction is made up largely of documentary ■evidence, which is to be found in a very voluminous transcript. The appellants’ counsel have not favored us with an abstract of the testimony on this issue, neither have they attempted to point out wherein the court -was not justified in directing the jury as it did in refer
II. It is insisted, however, that the judgment in this case must be reversed, because the right of action was in the husband alone. The damages proved, and upon which the finding of the jury must of necessity rest, appertained to the destruction of the fences along the line of the alleged streets, which served as an inclosure of land belonging to the wife. No damages were alleged or proved to growing crops. The fences were built of planks and wires attached to posts. The evidence had some tendency to show that the materials composing the fences were so damaged and broken in the removal as to render them unfit for further use. Under this state of the proof, the court permitted the plaintiffs to introduce evidence of the value of the fences thus destroyed on the score of damages; The evidence bearing on the question of damages was confined to this.
Actions for the violation only of the present possession of the wife’s land belonged to the husband. At common law the exclusive right to the possession of her lands, other than those held to her sole and separate use, is vested in the husband. It logically follows that the husband would be the only proper person to vindicate such present right of possession, when assailed or denied. Gray v. Dryden, 79 Mo. 106" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/gray-v-dryden-8007520?utm_source=webapp" opinion_id="8007520">79 Mo. 106; Bledsoe v. Sims, 53 Mo. 305" court="Mo." date_filed="1873-08-15" href="https://app.midpage.ai/document/bledsoe-v-simms-8004127?utm_source=webapp" opinion_id="8004127">53 Mo. 305; Wilson v. Garaghty, 70 Mo. 517" court="Mo." date_filed="1879-10-15" href="https://app.midpage.ai/document/wilson-v-garaghty-8006340?utm_source=webapp" opinion_id="8006340">70 Mo. 517. But, when the gravamen of the complaint pertains to an injury to the inheritance, or to the integrity of the
The judgment of the circuit court will be affirmed. All the judges concurring, it is so ordered.