Chouteau v. Boughton

• Decision Date: 19 May 1890
• Citation: 13 S.W. 877,100 Mo. 406
• Parties: CHOUTEAU v. BOUGHTON.
• Court: Missouri Supreme Court

13 S.W. 877

100 Mo. 406

CHOUTEAU v. BOUGHTON.

Supreme Court of Missouri.

May 19, 1890.

TRESPASS — TRUSTS — ACTIONS — PARTIES — EVIDENCE.

1. Where a trespass is committed on land conveyed to trustees to secure bonds pending foreclosure proceedings, and the land does not sell for enough to pay the bonds, and is purchased by the bond-holders, they may sue for the trespass, under Rev. St. Mo. 1879, § 3462, providing that every action shall be prosecuted in the name of the real party in interest, except as provided by section 3463, which declares that the trustee of an express trust may sue in his own name without joining the cestui que trust, and that the trustee of an express trust shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.

2. In an action for trespass on plaintiff's land, where the affidavit in attachment alleges that the injuries complained of arose from the commission of some felony or misdemeanor, evidence that defendant, representing himself to be the agent of a third person, from whom he had no authority, sold timber on the land, and collected the proceeds, that the timber was cut and carried away under such sale, and that defendant indorsed the trespass, is admissible under Rev. St. Mo. 1879, § 1359, which makes it a misdemeanor for one to cut down or carry away any trees on land not his own.

3. Since a cause of action for a trespass on land will survive and pass to the personal representative, under Rev. St. Mo. 1879, § 96, it is assignable.

Appeal from circuit court, Stoddard county; JOHN G. WEAR, Judge.

Houck & Keaton, for appellant. T. H. Mauldin, for respondent.

BLACK, J.

This is an action of trespass, brought by Charles P. Chouteau against George N. Boughton, to recover treble damages for cutting and carrying away trees and timber from the described lands, situate in Stoddard county. The trespass is alleged to have been committed on the 1st of September, 1879, and at divers times since that date. The suit was commenced on the 14th August, 1883. The affidavit for an attachment sued out in aid of the action states that the amount which the plaintiff ought to recover is $9,000, single damages, and that he has good reason to believe, and does believe, that the damages for which the action is brought are for injuries arising from the commission of some felony or misdemeanor by the defendant, as set forth in the petition. To this affidavit the defendant filed a plea in abatement. The trial thereon resulted in a verdict and judgment for defendant, and the plaintiff appealed. The errors assigned are (1) the exclusion of evidence offered by the plaintiff; and (2) the giving of an instruction which directed a verdict for the defendant.

The evidence shows that on the 23d of May, 1857, the Cairo & Fulton Railroad Company executed a deed of trust to three trustees, namely, John Moore, John Wilson, and A. G. Waterman, thereby conveying to them the lands in question, and a large amount of other lands and railroad property, to secure the payment of bonds. Joseph C. Moore and George H. Bridges, as administrators of G. M. Patterson, E. O. Reed, Henry E. Seelye, and Charles P. Chouteau, the present plaintiff, owned the bonds, and were the only beneficiaries in the deed of trust. The deed of trust contains a provision to the effect that the lands shall be deemed to be in the legal possession of the trustees. The deed of trust was foreclosed by a decree entered in this court in October, 1881; and the commissioner then appointed by this court sold the lands in question to Charles P. Chouteau, who received a deed therefor dated 26th of October, 1882. The debt evidenced by the bonds amounted to over $400,000, and the sale of the entire property specified in the deed of trust left a large unpaid balance. The bill of exceptions states that plaintiff offered in evidence a writing whereby the administrators of Patterson and Reed and Seelye assigned to the plaintiff the right to sue for, and recover for, any and all trespasses which had been or might be committed on the lands in question, which assignment was excluded by the court. The date of the assignment is not stated. The plaintiff then offered to show by a number of witnesses that during 1881 and 1882 the defendant sold to different firms and persons timber standing upon the lands; that the timber so sold was cut and taken away, and that defendant received and collected the money arising from such sales; that defendant sold the timber claiming to be the agent of ...