Brown v. McCormick
| Decision Date | 26 October 1886 |
| Citation | 23 Mo.App. 181 |
| Parties | PINCKNEY E. BROWN, Respondent, v. BARNABAS MCCORMICK ET AL., Appellants. |
| Court | Missouri Court of Appeals |
APPEAL from the Clarke County Circuit Court, BEN. E. TURNER, Judge.
Reversed and remanded.
N. F. GIVENS and REED & WHITESIDE, for the appellants: The lease in question did not give the plaintiff possession. Michan v. Walsh, 6 Mo. 346. The plaintiff must have bona fide peaceable possession of the premises, and not a mere sham. DeGraw v. Prior, 60 Mo. 56; Edwards v. Cary, 60 Mo. 572. The title and right of possession is not sufficient. Beeler v. Cardwell, 29 Mo. 72. Possession merely to gain some advantage at law is not bona fide. Keene v. Schnedler, 9 Mo. App. 597; Dyer v. Reitz, 14 Mo. App. 45. A party who asks an instruction on the whole case must so frame it as not to exclude from the jury the points raised by the evidence of the other party. Clark v. Hammerle, 27 Mo. 55; Sawyer v. Railroad, 37 Mo. 240; Fitzgerald v. Hayward, 50 Mo. 516.
W. L. BERKHEIMER, for the respondent: The execution of a lease and the taking possession of the premises thereunder, and exercising the usual acts of possession, are evidences of lawful possession. McCartney v. Alderson, 45 Mo. 35; Bartlett v. Draper, 23 Mo. 407; Miller v. Northup, 49 Mo. 397; Miller v. Tillman, 61 Mo. 316. The McCormicks are precluded and estopped now, to either claim the land, or that they were in possession. Bunce v. Beck, 46 Mo. 327; Chatterton v. Gordon, 39 Mo. 229; Pelkington v. Insurance Co., 55 Mo. 172; Taylor v. Saugrain, 1 Mo. App. 312.
This is an action of unlawful detainer. The complaint states that the plaintiff, on the first day of March, 1886, “had the legal right to the possession” of the premises described, and that the defendants, “on the day and year aforesaid, wrongfully and without force, by disseisin, obtained, and continues in possession of said premises after demand made in writing for the delivery of the possession thereof.”
It appears, from the testimony, that the land was owned by one Lapsley, who leased it to the defendant, Barnabas McCormick, for the year 1885, and until March 1, 1886. During the summer of 1885, there was some talk between these parties about a renewal of the renting for the year 1886. Lapsley testifies that no definite conclusion was reached. McCormick testifies that the parties came to a distinct understanding that he was to have the land for the ensuing year, if he should not, in the meantime, sell out and remove to Nebraska; that he did not so remove, and, considering himself still the tenant of Lapsley, never at any time surrendered or abandoned his possession as such. He did some ploughing on the place in the fall of 1885, in preparation for the next year's crop, having an understanding with Lapsley that, in the event of his removal to Nebraska, Lapsley would pay him for the work. It should be here remarked that the controversy is confined to the east half of the forty-two acre tract described in the complaint.
The plaintiff testified that he rented the west half of the tract from Lapsley in August, 1885, and the east half from the same party on March 6, 1886. That he “took possession of the land on the first day of March, 1886, by going in on the land, fixing the fence up, getting ready for corn, and I and my hand cut twenty acre of stocks on the east part of the land.” It further appeared in the testimony that in November, 1885, Lapsley caused a notice in writing to be served on McCormick for a surrender of the premises on the first day of March, 1886. Several witnesses testified that in the fall or winter of 1885, the plaintiff told them that, for the ensuing year, he was to have the west half of the tract and McCormick the east half. The plaintiff introduced testimony tending to prove that on the eighth or ninth of April, 1886, the defendants were plowing and doing...
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