146 Mo. App. 288 | Mo. Ct. App. | 1910
This is an action for forcible entry and unlawful detainer for a strip of land twelve feet wide and thirty-five feet long. It appears that the defendant was the owner of a lot in the city of Caruthersville, fronting on George street on which it had its public buildings. That the plaintiff claimed to be the owner and was in possession of a lot immediately back of the city lot and the land in controversy is a strip of ground between these two lots. The controversy arises out of the fact that the parties disagree as to the division line between them. The defendant had, in 1896, or ’97, erected a city hall and jail combined upon this lot, and at the rear of this building and constituting a portion of it was what was called a shed, eight feet wide and sixteen feet long, nsed for the purpose of storing the city’s fire apparatus. The plaintiff had occupied the ground of which he had possession for the purpose of a coal yard and public weighing scales, and his testimony tended to show that he had been in possession of all the strip now in controversy except that portion covered by
It also appears from the testimony that there had been a dispute between plaintiff and defendant for some time over the boundary line between their property.
The case was tried before a jury, verdict returned in favor of defendant and plaintiff has appealed. The errors assigned by plaintiff are that the court erred in permitting counsel for defendant to make certain remarks in his opening statement to the jury; that the court erred in admitting incompetent and irrelevant testimony on the part of defendant; in rejecting competent testimony offered by plaintiff and errors committed in giving and refusing instructions.
The undisputed facts in this case show that the .defendant had a deed of some kind to this property although it was not permitted to be introduced in evidence; that it was in possession of this strip now in dispute for several years before plaintiff acquired any possession or asserted any right thereto; that it remained in possession of, at least, the portion of it occupied by what is called the shed building up to the time that plaintiff erected its fence, and that at the time plaintiff erected the fence which as he and his attorney claimed was put there for the purpose of defining his possession, the defendant was, as a matter of fact, then in possession, because as the undisputed testimony shows, the stakes and lines, indicating the lines of its building which were placed there preparatory to digging the ditches for its foundation, were there on the ground and plaintiff must have seen them when he erected the fence. It is also undisputed that plaintiff had consulted his attorney several times before erecting this fence and it is worthy of note that while he and his counsel both testified in a general way that the fence was erected under the advice of his counsel, and while they stated that it was done for the purpose of defining his possession it nowhere appears that plaintiff’s coun
The law applicable to a case of this character is clear enough under the decisions in this State and may be briefly stated to be as follows:
The title to the land, or the right to its possession, is not an issue in an action of forcible entry and unlawful detainer. [Sitton v. Sapp, 62 Mo. App. 203; Van Stewart v. Miles, 105 Mo. App. 242; 79 S. W. 988; Redman v. Perkins, 122 Mo. App. 164, 98 S. W. 1097.]
Neither is it a question as to how plaintiff obtained possession provided that at the time defendant ousted him he was then in the peaceable possession of the property. [Meriwether v. Howe, 48 Mo. App. 148; Sitton v. Sapp, 62 Mo. App. 203.]
Another well-settled principle of law is that possession taken primarily for the purpose of securing an advantage in threatened or expected litigation is not such a possession as the court will recognize, and it cannot be made the foundation of any sort of action as between that party and the one against whom the advantage was sought by the act of taking possession. [Dyer v. Reitz, 14 Mo. App. 45; Swayze v. Bride, 34 Mo. App. 414; Apperson v. Allen, 42 Mo. App. 537; Buck v. Endicott, 103 Mo. App. 248, 77 S. W. 85; Milem v. Freeman, 136 Mo. App. 117, 117 S. W. 634.]
As to the real issues in this case there was not very much conflict in the testimony. The good faith of plaintiff in erecting the fence spoken of by the witnesses and which defendant is charged with having torn down at the time of the alleged forcible entry was the real issue in this case. When plaintiff built the fence that gave him the physical possession of the land and if the law will recognize and protect that possession the defend
The judgment will be reversed and the cause remanded.