Badger Lumber Co. v. St. Louis-San Francisco Ry. Co.
| Decision Date | 11 January 1936 |
| Docket Number | 30837 |
| Citation | 89 S.W.2d 954,338 Mo. 349 |
| Parties | Badger Lumber Company, a Corporation, v. St. Louis-San Francisco Railway Company, a Corporation, Appellant |
| Court | Missouri Supreme Court |
Rehearing Granted, Reported at 338 Mo. 349 at 359.
Appeal from Jackson Circuit Court; Hon. A. Stanford Lyon Judge; Opinion filed at May Term, 1935, July 9, 1935; motion for rehearing filed; motion overruled December 18, 1935 motion to transfer to Court en Banc filed; motion overruled at the September Term, January 11, 1936.
Reversed and remanded.
Joseph W. Jamison, Henry S. Conrad, L. E. Durham, Hale Houts, I. M. Lee and Wright Conrad for appellant.
(1) The court erred in refusing to give the peremptory instruction requested at the close of all the evidence for a directed verdict for the defendant. As a matter of law, by plaintiff's own evidence, the defendant acquired and held the tract in question by adverse possession. Carson v. Lumber Co., 270 Mo. 245; Sissel v. Railroad Co., 214 Mo. 526; Milligan v. Fritts, 226 Mo. 189; Bryan v. Millar, 299 Mo. 186; Coats & Hopkins Realty Co. v. Terminal Ry. Co., 328 Mo. 1136; Turner v. Ry. Co., 112 Mo. 542; Sec. 1861, R. S. 1929; Boyd v. Jones, 49 Mo. 202; Edwards v. Ry. Co., 66 Mo. 569; Wymore v. Ry. Co., 79 Mo. 247; Mather v. Walsh, 107 Mo. 131; McDaniels v. Cuthbert, 270 S.W. 359; Wilkerson v. Eilers, 114 Mo. 254; Weller v. Wagner, 181 Mo. 161; Mo. Timber & Mining Co. v. Hassell, 298 S.W. 50; Boyce v. Ry. Co., 168 Mo. 583; St. L.-S. F. Ry. Co. v. Dillard, 328 Mo. 1161; St. L.-S. F. Ry. Co. v. King, 329 Mo. 1212; Rush v. West, 235 S.W. 1016; Dausch v. Crane, 109 Mo. 336; Norton v. Kowazek, 193 S.W. 559; Burnside v. Doolittle, 324 Mo. 731; Kostner v. Schrock, 252 S.W. 382; Moore v. Hoffman, 327 Mo. 866; Kostner v. Schrock, 64 S.W.2d 666; Pioneer Cooperage Co. v. Dillard, 332 Mo. 801. (2) The court erred in giving plaintiff's Instruction 2. (a) It was error to instruct the jury that defendant's occupancy of the strip in question was presumed to be by consent and subject to ownership of plaintiff. Turner v. Ry. Co., 112 Mo. 547. (b) It was error to advise the jury that the defendant "intended to exclude the true owner, knowing that there was a true owner." Kostner v. Schrock, 252 S.W. 382; Kostner v. Schrock, 64 S.W.2d 666; Wilkerson v. Eilers, 114 Mo. 253; Pioneer Cooperage Co. v. Dillard, 332 Mo. 801. (c) The court erred in advising the jury that in order for them to find for the defendant upon the defense of adverse possession they must find that defendant "occupied said strip under claim of right, that is, must have pretended or asserted that they had some legal authority to hold it." Mather v. Walsh, 107 Mo. 132; Wilkerson v. Eilers, 114 Mo. 253; Cullen v. Johnson, 325 Mo. 373; Rush v. West, 235 S.W. 1016; Kostner v. Schrock, 252 S.W. 382.
Langworthy, Spencer & Terrell for respondent.
(1) The trial court properly refused to give the peremptory instruction in the nature of a demurrer to the evidence requested by defendant at the close of all of the evidence. Johnson v. Ry. Co., 64 S.W.2d 674; Quisenberry v. Stewart, 219 S.W. 625; Eatherton v. Henderson, 59 S.W.2d 623; Gray v. Shelton, 282 S.W. 53; Courtner v. Putnam, 30 S.W.2d 126; Ware v. Cheek, 201 S.W. 847; Volkart v. Groom, 9 S.W.2d 947; Jamison v. Galloway, 254 S.W. 101; Foard v. McAnnelly, 215 Mo. 371, 114 S.W. 990; Diers v. Peterson, 290 Mo. 249, 234 S.W. 792; Chostner v. Schrock, 252 S.W. 381. (2) The trial court properly gave plaintiff's Instruction 2. Fiorella v. Jones, 259 S.W. 782. (a) It was proper to instruct the jury that defendant's occupancy of the strip of land in question was presumed to be by consent and subject to the ownership of plaintiff. Fiorella v. Jones, supra; Quisenberry v. Stewart, 219 S.W. 625. (b) It was proper to instruct the jury that the defendant must have "intended to exclude the true owner, knowing that there was a true owner." Fiorella v. Jones, supra. (c) It was proper to instruct the jury that in order for them to find for the defendant upon the defense of adverse possession it must find that defendant "occupied said strip under claim of right, that is, must have pretended or asserted that they had some legal authority to hold it." Fiorella v. Jones, supra.
Coles, J., not sitting.
This cause is in ejectment to recover the possession of a strip of land seventeen feet in width and 1092 feet in length in Kansas City, Missouri, and between Thirty-seventh Street on the north and Thirty-ninth Street on the south, and near 6800 East. Cause was tried to a jury. Plaintiff obtained judgement for possession, but nothing for damages or rents and profits. Motion for a new trial was overruled and defendant appealed.
Petition is in conventional form. The answer admits possession; denies that plaintiff was entitled to possession and pleads adverse possession for more than forty years. Reply denies new matter generally.
Defendant assigns error on the refusal of its peremptory request for a directed verdict at the close of the whole case and on Instruction No. 2 given for plaintiff.
Before proceeding to the merits it is necessary to dispose of a motion filed here to stay this cause pending the final disposition of defendant in bankruptcy proceedings in the United States District Court, Eastern District of Missouri. Section 11 (a) of the Bankruptcy Act provides: "A suit which is founded upon a claim from which a discharge would be a release, and which is pending against a person at the time of the filing of a petition against him, shall be stayed until after an adjudication or the dismissal of the petition; if such person is adjudged a bankrupt, such action may be further stayed until twelve months after the date of such adjudication, or, if within that time such person applies for a discharge, then until the question of such discharge is determined."
Section 77 (L) of the Act of March 3, 1933, Subdivision L, Section 205, 11 U.S.C. A., amending the Bankruptcy Act provides: "In addition to the provisions of Section 11 of this Act for the staying of pending suits against the debtor, such suits shall be further stayed until after final decree the judge may, upon notice and for cause shown, enjoin or stay the commencement or continuance of any judicial proceeding to enforce any lien upon the estate until after final decree."
When the bankruptcy petition was filed by defendant in the United States District Court, Eastern District of Missouri, under the amendment of March 3, 1933, the instant cause was pending, and on that petition the court, so far as pertinent here, ordered: "That all suits pending against the debtor founded upon claims from which a discharge would be a release . . . be, and they hereby are, stayed until after final decree herein, and that the debtor, its officers, directors, agents, attorneys, employees, and all persons who act by virtue of or under it, and all other persons, firms and corporations whatsoever and wheresoever situated, located or domiciled (other than said receivers, their agents and employees) are hereby restrained and enjoined from interfering with, attaching, levying upon, or in any manner whatsoever disturbing any portion of the assets, goods, monies, railroads, properties and premises of the debtor."
Plaintiff below, respondent here, resists defendant's motion to stay. It will be noted that Section 11 of the Bankruptcy Act provides that a pending suit "founded upon a claim from which a discharge would be a release" shall be stayed. The cause at bar is in ejectment and there was no finding and judgment for damages or for monthly rents and profits. In the following instances, stays were refused: A suit to set aside a fraudulent conveyance, In re United Wireless Tel. Co., 192 F. 238; the attachment of a fund claimed by the attaching plaintiff, Tennessee Producer Marble Co. v. Grant, 135 F. 322; the execution of deeds pursuant to a decree in specific performance relating to lands, In re Chab, 8 F.Supp. 195; the enforcement of judgment in forcible entry and detainer, In re Smith, 7 F.Supp. 863. In 7 Remington on Bankruptcy (4 Ed.), section 3443, it is stated: "In actions to try the title to property, or to determine the validity of liens on property, or interests therein, where no recovery of a debt is sought, the defendant may not interpose his discharge in bankruptcy -- discharge bars debts, not ownership of property, whether such ownership be absolute, conditional or by way of lien, whether it be ownership of the whole or merely partial ownership."
Peters v. Bowers (Colo.), 158 P. 1101, was in ejectment. Headnote 1 states the holding of the Supreme Court of Colorado so far as pertinent to the question here, and this note is as follows: "One claiming title to and right of possession of land also claimed by trustee in bankruptcy as part of the estate is entitled to a trial by independent suit, at law or in equity, as distinguished from a summary proceeding in bankruptcy."
Defendant cites no authority to support its motion to stay and we find none. We see nothing in the order of the United States District Court which would justify staying the cause here. Manifestly there is no merit in defendant's motion to stay, and it is overruled.
On the merits: It is conceded that plaintiff had record title. Plaintiff's evidence shows that it acquired by deed the strip of land in 1903, and has since that time paid all taxes assessed against it. This, plaintiff says, made a prima facie case for the jury. On the other hand defendant says that plaintiff's own evidence shows that defendant had been in open, adverse possession for more than ten years, and that such being the case, the peremptory direction should have been given. The tract of...
To continue reading
Request your trial
-
Badger Lumber Co. v. St. Louis-San Francisco Ry. Co.
...v. St. Louis-San Francisco Railway Company, a Corporation, Appellant No. 30837Supreme Court of MissouriJanuary 11, 1936 Reported at 338 Mo. 349 at 359. Opinion of January 11, 1936, Reported at 338 Mo. 349. Coles, J., not sitting. OPINION PER CURIAM. On Motion for Rehearing. In the motion ab......