Baber v. Henderson

• Decision Date: 12 June 1900
• Citation: 57 S.W. 719,156 Mo. 566
• Parties: BABER v. HENDERSON.
• Court: Missouri Supreme Court

57 S.W. 719

156 Mo. 566

BABER v. HENDERSON.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

EJECTMENT — TENANCY IN COMMON — DISSEISIN — EVIDENCE — CONVEYANCE AFTER SUIT — HOLDING FOR CO-TENANTS — HOLDING FOR DISSEISOR — OUSTER — ADVERSE POSSESSION.

1. In ejectment by a tenant in common against a disseisor, it was error to admit in evidence a deed to such tenant, executed after institution of his suit, conveying the portion of a co-tenant, and to render judgment for his portion, so augmented, since title must be shown before the ouster laid in the petition.

2. Where tenants in common are disseised by a stranger, one of such tenants cannot, on recovery in ejectment, hold for his co-tenants, but holds in common with the disseisor.

3. Where one who took possession of land for garden purposes, without claim of title, and asserted no such claim during his possession, but declared that he did not claim to own it, and only entered to cultivate it on assurance against trouble by another, such possession was insufficient, in ejectment by the holder of the record title, to support a claim of title by limitation, since it was not hostile or under claim of right.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Ejectment by William D. Baber against James A. Henderson. From a judgment in favor of plaintiff, defendant appeals. Reversed.

R. H. Stevens, for appellant. F. A. Heidorn and John R. Warfield, for respondent.

ROBINSON, J.

This is a suit by ejectment for two irregular parcels of land adjoining the town of Bridgeton, in St. Louis county, spoken of and designated throughout the trial as lots D, E, and F. Defendant's answer was a general denial, after admitting that plaintiff was entitled to a 3/28 interest in that part of the land designated as lot D. At the trial, defendant's claim was title by adverse possession of the property for the statutory period of limitation. The court found the issue in favor of defendant as to lot E, but found that plaintiff was entitled to a 58/315 interest in lots D and F, and rendered judgment for plaintiff for that interest, accordingly. From that judgment defendant, after the usual preliminaries for an appeal, has brought the case here for review, assigning as error the action of the trial court in permitting plaintiff to read in evidence a deed conveying to himself an undivided interest to part of the property in controversy, made after the plaintiff had instituted his suit herein, and for the action of the court in rendering its judgment based thereon, declaring plaintiff's interest in the property augmented to the extent of the interest conveyed by said deed, and, further, because the court erred in finding from the evidence that defendant, and those under whom he claimed, had not shown a title by limitation to that part of the property known as lot D, except as to the 3/28 interest owned by plaintiff. The plaintiff now contends, however, that, as he established his right to recover a 3/28 interest in lots D and F by what is known as the James deed, it is immaterial to consider the objection of appellant to the introduction of the deeds of James W. Robertson et al. to the plaintiff, made after the institution of this suit; that, as the James deed established plaintiff's title to the property, the after-acquired deed of Robertson et al. only went to the extent of enlarging the quantum of that interest, which can in no wise prejudice the defendant, he having shown no title to the property in himself. Plaintiff's contention would be true if, under our practice, one tenant in common, though entitled under his deed to only a part interest in the premises, yet would be entitled to recover the whole thereof in a suit against a stranger, and, when put into possession under his judgment, would hold for the other co-tenants as well as for himself. In many jurisdictions this rule prevails, but such is not the case in this state. It is undoubtedly true that no harm was occasioned to defendant by the action of the plaintiff reading in evidence the deeds acquired after the institution of this suit, or in the action of the court in adjudging upon the interest therein conveyed, if the rule of practice in this state was as plaintiff contends. If plaintiff, with an unquestioned fractional interest, was entitled to recover the entire property, then, of course, the matter of determining that particular interest, greater or less, could not concern the defendant, who is to be ousted from the whole, and errors by the court upon that point would not be hurtful to him. As said above, such is not the rule of practice in this state, however general it may be throughout the different states of the Union. Hence each tenant in common in this state, who is ousted of possession by a...