Stevenson v. Hancock

• Decision Date: 31 October 1880
• Citation: 72 Mo. 612
• Parties: STEVENSON v. HANCOCK, Appellant.
• Court: Missouri Supreme Court

72 Mo. 612

STEVENSON

v.HANCOCK, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Saline Circuit Court.--HON. WM. T. WOOD, Judge.

REVERSED.

Davis & Hays for appellant.

NORTON, J.

This action was commenced before a justice of the peace for the specific recovery of fifty barrels of corn, upon the trial of which in the circuit court, where it had been taken by appeal, plaintiff obtained judgment, from which defendant has appealed to this court. It appears that the corn sued for was grown in 1876, on a tract of land which had been rented by plaintiff to one Decker for $150 from the 1st day of March, 1876, to the 1st day of March, 1877, said rent payable at the end of the year; that said land was owned by plaintiff in common with others; that by virtue of a decree rendered in a partition suit instituted by the owners, the land was sold for purposes of partition in October, 1876, and was purchased by defendant, to whom a deed was made by the sheriff. It also appears that after the said sale both plaintiff and defendant claimed the rent to be paid by said Decker, and that Decker told defendant that he and plaintiff could take the corn in controversy and do as they pleased with it, and that he would have nothing more to do with it, and that defendant took into his possession the corn. The plaintiff offered in evidence the following portion of the decree in partition, viz: “That the plaintiff, Stevenson, has been in possession of, and occupying and cultivating the whole of the tillable portion of said premises since the death of his father, Andrew H. Stevenson, and that during such time he has made improvements thereon, and has also received all the rents for same during that period, and after giving him credit for all his improvements and credit for his share of said rents, he is still due the other interests in the aggregate for rents the sum of $492.03.” Plaintiff also introduced two witnesses who testified that it was their impression that in the said decree, rent for the land was charged to plaintiff up to March 1st, 1877. This evidence was objected to by defendant on the ground that defendant was not a party to the proceeding, and on the ground that parol evidence was not admissible to explain or alter the decree.

On the above state of facts the court gave the following instruction, over defendant's objection: “The court declares the law to be that if the evidence shows that the plaintiff was, with other persons, the plaintiffs and defendants in the partition suit of Stevenson and others against Stevenson and others, the owners of land on which the corn was grown, and that plaintiff had been in the possession of the said land since the death of his father, and that he was in possession at the time of the rendition of the decree of partition in said suit of Stevenson against Stevenson, and that said decree was rendered in June, 1876, after the crop was planted, and that by said decree he was charged with the rent of the land up to March 1st, 1877, and that plaintiff rented said land to Decker for the year 1876, up to March, 1877, and that Decker raised the corn in controversy on said land in that year, and that Decker informed both plaintiff and defendant that they might take the corn grown thereon for rent and settle the matter of rent, or who was entitled to it for rent, between themselves, and that defendant afterward, without consent of plaintiff, took said corn, and that defendant, in October, 1876, purchased the...