Alexander v. Campbell

• Decision Date: 31 October 1881
• Citation: 74 Mo. 142
• Parties: ALEXANDER v. CAMPBELL, Appellant.
• Court: Missouri Supreme Court

74 Mo. 142

ALEXANDER

v.CAMPBELL, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Ejectment for lots in Kansas City. Plaintiff gave in evidence a deed of trust from Jay Adams, dated March 24th, 1871, conveying the lots in dispute to R. W. Stover, to secure Geo. W. Tew in a $1,400 note of even date, and also a trustee's deed conveying the same property, dated September 3rd, 1875, executed by C. B. L. Boothe, sheriff of Jackson county, to plaintiff, which deed recited the death of Stover, the original trustee, and a sale by the sheriff under said deed of trust and in virtue of the power thereby conferred upon him in case of the death of the said original trustee. A witness testified that Jay Adams lived on the property in 1869 and 1870, and, he believed, in 1871, and that Adams had built the house on said property. To show that Adams went into possession under claim or color of title, plaintiff next read in evidence what purported to be a copy of a deed to said lots, from a book purporting to contain copies of deeds originally recorded at Independence, said deeds purporting to be made by Josiah B. Allen and wife, by E. H. Allen, their attorney in fact, dated March 16th, 1870. Plaintiff then read a deed, dated October 30th, 1866, purporting to be made by Thomas M. Hite and wife, by H. H. King, their attorney in fact, to Josiah B. Allen. The powers of attorney, if any, under which these deeds were made, were not read in evidence, and the deeds were objected to on this ground.

J. B. F. Cates for appellant.

Dunlap & Freeman for respondent.

SHERWOOD, C. J.

The petition states that on the 27th day of October, 1875, the plaintiff was lawfully entitled to the possession of the following described premises, to-wit: Lots 9 and 10, in block 3, King & Bouton's addition to the City of Kansas, Jackson county, Missouri, and that being so entitled to the possession, the defendant afterward, on the 30th day of October, 1875, being in possession of said premises, did unlawfully withhold and does yet unlawfully withhold the possession of said property from the plaintiff. The answer denies every allegation of the petition.

I.

It is insisted that plaintiff's action is not ejectment, but unlawful detainer. The statute respecting the former action states that: “It shall be sufficient for the plaintiff to aver in the petition that on some day therein to be specified, he was entitled to the possession of the premises, describing them, and being so entitled to the possession thereof, that the defendant, afterward, on some day to be stated, entered into such premises and unlawfully withholds from the plaintiff the possession thereof,” etc., etc. R. S. 1879, § 2245. The next succeeding section of the statute, (§ 2246,) provides that: “All pleadings and proceedings in this action shall be conducted as in other civil actions, except where it is hereinafter otherwise prescribed.” The general provisions respecting a petition, are that it shall contain “a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.” R. S., § 3511. Facts are required to be stated, not the legal effect of those facts. It is not necessary under the code to state “a cause of action,” but only “facts sufficient to constitute a cause of action.” Farley v. Railroad, 72 Mo. 338. Another section of the code provides: “No allegation shall be made in a pleading which the law does not require to be proved, and only the substantive facts necessary to constitute the cause of action * * shall be stated.” § 3527. Recurring to the chapter entitled ejectment, we find that an action for the recovery of the possession of premises, may be maintained “in all cases where the plaintiff is legally entitled to the possession thereof.” § 2240. And on looking to another section of the same chapter, we find that: “To entitle the plaintiff to recover, it shall be sufficient for him to show that, at the time of the commencement of the action, the defendant was in possession of the premises claimed, and that the plaintiff had such a right to the possession thereof as is declared by this chapter to be sufficient to maintain the action.” § 2247.

Now, if we consider, as we must, all the sections I have quoted in connection with each other, it would seem unnecessary, nay, forbidden, to allege that which “the law does not require to be proved;” and that an entry by a defendant is not necessary; is not one of the “substantive facts,” necessary for the plaintiff to prove, as shown by the section last quoted. The only “substantive facts” requisite under that section to be proved, are: 1st, The defendant in possession at the commencement of the action; 2nd, The plaintiff legally entitled to such possession. And the statute we are considering seems to make a distinction between an ordinary action of ejectment, one between strangers, and one between co-tenants; for, in the latter case, section 2248 provides: “The plaintiff shall also be required to show on the trial the defendant actually ousted him, or did some act amounting to a total denial of his right as such co-tenant.” Moreover, the code requires that: “In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties,” (R. S., § 3546,) and we are commanded to disregard any error not “materially affecting the merits of the action.” Ib., § 3775; Garth v. Caldwell, 72 Mo. 622. Here, the defendant, according to the theory of the petition, had not made an entry on the premises with a view to oust the plaintiff, but was lawfully in possession, and afterward did unlawfully withhold the premises from the plaintiff. The petition appears to state “facts sufficient to constitute a cause of action,” the ““substantive facts;” and we must hold it sufficient, though we can by no means commend it as a model of good pleading.

Defendant in support of his position cites Watson v. Zimmerman, 6 Cal. 46, where it...