Charter Oak Ins. Co. v. Cummings

• Decision Date: 06 December 1886
• Citation: 2 S.W. 397,90 Mo. 267
• Parties: The Charter Oak Life Insurance Company v. Cummings et al., Appellants
• Court: Missouri Supreme Court

2 S.W. 397

90 Mo. 267

The Charter Oak Life Insurance Company v. Cummings et al., Appellants

Supreme Court of Missouri

December 6, 1886

Appeal from St. Louis Court of Appeals.

Affirmed.

D. T Jewett for appellants.

The judgment here enjoined is a regular judgment obtained in due course of law and in compliance with all the provisions of the statutes of the state, and wholly without haste or concealment, and after a delay of nearly five years from the commencement of the suit. The title claimed by the plaintiff here was in the defendant in the suit when it was commenced. On the face of the case, as made by plaintiff, there is no ground for an injunction. Carolus v. Koch, 72 Mo 645. Possession is actual or constructive. It follows the title, and, unless actual adverse possession is shown, the lawful possession is presumed to be and is with the owner of the title. Turner v. Baker, 64 Mo. 245; Moore v Perry, 61 Mo. 174. No adverse possession is shown here, and the possession was in White, in whom was the legal title, as claimed by plaintiff, in August, 1876, when this suit was commenced. A suit in ejectment must be in the name of the holder of the legal title -- a cestui que trust cannot maintain ejectment. Baker v. Nall, 59 Mo. 265. And for the same reason, ejectment must be against the holder of the legal title, or his tenant, or either, or both, for the tenant is but the representative of the owner. It must be against the person, who is actually, or presumptively in possession. Bledsoe v. Simms, 53 Mo. 305. Ejectment can only be maintained on the title, as it stood at the commencement of the action. Norfleet v. Russell, 64 Mo. 176. Trespass can be maintained on constructive, or presumptive possession -- no open adverse possession being proved. Cochran v. Whiteside, 34 Mo. 417. Possession is actual, or presumptive, or constructive. Constructive or presumptive possession is such possession as follows the title, when no adverse possession is shown. 2 Abbott's Law Dictionary, title, possession; Moore v. Perry, 61 Mo. 174. A party in actual possession, owning a moiety, his co-owner is in constructive possession, unless the owner in actual possession does notorious acts, showing clear intention to disseize his co-tenant. 2 Abbott's Law Dictionary, title, possession. In this case there is no pretense of any evidence of adverse possession. Plaintiff in this case will suffer no wrong by dissolution of this injunction. It has a full and complete remedy at law by action of ejectment, if it has any title. It has lost nothing by lapse of time. The statute does not run against them. One judgment in ejectment is no bar to another. Kimmel v. Benner, 70 Mo. 52.

J. S. Fullerton for respondent.

(1) The judgment in Cummings et al. v. White, is absolutely void. (a) The action was not brought against the owner of the legal title. (b) The action was not brought against the party in actual possession of the premises claimed. (c) The party against whom the action was brought, at the commencement thereof, had no title, nor was he ever in actual or constructive possession of the premises. (2) The judgment is absolutely void, because the suit was not commenced against the tenant in possession as required by the statute. "The action shall be brought only against the persons in possession of the premises claimed." R. S., 1879, sec 2243. "To entitle plaintiff to recover, he must show that at the time of the commencement of the action the defendant was in possession of the premises claimed." R. S., 1879, sec. 2247. "The general principle in an action of ejectment is, that the plaintiff must prove the defendant in possession of the premises sued for." Atwell v. McLure, 4 Jones, 371. "The action must be brought against one in actual possession of the land." Tyler on Ejectment [Ed. 1874] 472. "Against one in possession in fact." McDowell v. King, 4 Dana, 67. (3) The question may be considered, when was said action in ejectment commenced? Clearly, this was not till May 20, 1880, the date of filing of said proof of publication -- certainly not before April, 1879, when an order of publication was first asked for. "The doctrine of lis pendens only applies when parties to a suit have been notified of it. There is no lis pendens as to strangers until process is served on them, or there is a voluntary appearance of the parties to it." Bailey v. McGuire, 57 Mo. 362. "A mortgage on land executed after the issue, but before service of a petition in ejectment, does not subject the holder thereunder to the liability of purchaser pendente lite." Shaw v. Padley, 64 Mo. 519. "The beginning of an action in ejectment is the service of the declaration." Atwell v. McLure, 4 Jones, 371. "The service of notice in ejectment is the commencement of the action." Bendle v. Mydwell, 7 B. Monroe, 314. At the time of the commencement of the ejectment suit, and long before then, the respondent was not only the legal owner of the land in question, but was in possession thereof, by and through its new tenant, Mrs. Gansey, who was living on and cultivating part of the land, and using the balance for pasturage. (4) The judgment being void, the trial court properly granted the relief prayed for by perpetually enjoining the writ of possession. State to use of the Board of Education v. Tiedemann, 69 Mo. 306; Chambers v. King, 16 Kansas, 270; Coulter v. Hatsfield, 3 Yerger, 366; Guier v. Canfield, 20 Iowa 79. In cases like this courts of equity, always, when called upon, have interfered and stayed proceedings by injunction. Bresnehan v. Price, 57 Mo. 422. See Goodenough v. Sheppard, 28 Ill. 81; Burke v. Parker, 80 N.C. 157; High on Injunctions [Ed. 1880] sec. 357,...