Bartlett v. Draper

• Decision Date: 31 October 1856
• Citation: Bartlett v. Draper, 23 Mo. 407 (Mo. 1856)
• Parties: BARTLETT, Respondent, v. DRAPER et al., Appellants.
• Court: Missouri Supreme Court

23 Mo. 407

BARTLETT, Respondent,

v.DRAPER et al., Appellants.

Supreme Court of Missouri.

October Term, 1856.

1. In order to constitute such a possession as will sustain an action of forcible entry and detainer, it is not necessary that the party should stand on the land, or keep a servant or agents there; but any act done by himself on the premises, indicating an intention to hold the possession thereof to himself, will be sufficient to give him the actual possession.

Appeal from Pike Circuit Court.

The facts sufficiently appear in the opinion of the court.

Broadhead and Hunt, for appellants.

I. There is no evidence to support the verdict. The action is an action of forcible entry and detainer under the 2d section of the act. To constitute a cause of action under this section, the entry must either be by force or strong hand, &c. or else the entry must be peaceable (R. C. 1845, p. 512), and then a turning out by force, or frightening by threats or other circumstances of terror, the party out of possession. In this case there was no evidence of either, or any evidence tending to show that the defendants were guilty of either.

II. The court erred in giving the 2d instruction asked by the plaintiff, and in refusing to give the 2d instruction asked by the defendants. The giving of the 2d instruction for the plaintiff, although it may be true as a legal proposition, was nevertheless in this case calculated to mislead the jury. To constitute actual possession, it is not necessary that a man should always be on his land, or keep some one always there. He may leave it temporarily and still be in the actual possession. Business or pleasure may cause a man to leave his house or his farm for a few days or a few weeks, and he may during all this time be very properly considered in actual possession. But if he puts a few posts on a vacant lot, and then leases it for six months, exercising in the mean time no acts of ownership over it, and using it for no purposes whatever, he can hardly be said at the end of that time to be in actual possession of the lot.

III. But even admitting the plaintiff was in actual peaceable possession of the premises, though not upon the ground at the time of the entry by defendants, still the entry of the defendants was peaceable, and the holding over, if wrongful, was without force, and a demand in writing should have been given for the possession of the premises. If liable at all, the defendants were liable for disseizin under the provisions of the 3d section of the act, and in that case they should have been sued for unlawful detainer after demand made in writing, and not for forcible entry and detainer. (11 Mo. 354; R. C. 1845, p. 512.)

A. H. Buckner, for respondent.

RYLAND, Judge, delivered the opinion of the court.

This was an action of forcible entry and detainer by Bartlett against the defendants and others for two lots of ground in the town of Louisiana. The plaintiff had judgment before the justice. The defendants appealed to the Circuit Court. On the trial in that court the plaintiff again had a verdict and judgment. After the evidence was closed on both sides, the court gave three instructions for the plaintiff, and one for the defendants, and refused to give the other instructions asked for by defendants. The defendants excepted to the giving of the instructions for the plaintiff and the refusal to give theirs. The questions made in this court are to the propriety of the second instruction given for the plaintiff, and the refusal to give the defendants' second instruction.

As to the point made by the appellants' counsel, that there is no evidence to support the verdict, we pass that by, remarking that, after what has been so often said by this court in regard to want of evidence or no evidence to support the verdict, we are somewhat...