Degraw v. Prior
| Citation | 60 Mo. 56 |
| Parties | HAMILTON DEGRAW, Respondent, v. WILLIAM PRIOR, Appellant. |
| Decision Date | 31 May 1875 |
| Court | United States State Supreme Court of Missouri |
Appeal from Carroll Circuit Court.
Instructions Nos. 6 and 7 referred to by the court were as follows:
VI. The court instructs the jury that there is no evidence tending to show that the Websters ever took possession of the land in question under the contract for a deed which was read in evidence; and that in the absence of such evidence the said contract for a deed cannot affect any right to recover which plaintiff may have under the evidence in this case.
VII. If the witness Hill, under the agreement which has been read in evidence, went upon the land in question in July, 1868, and plowed five-eighths of an acre, or thereabouts, for the plaintiff, and with the view to take possession of the same for plaintiff, and if he temporarily quit the plowing for any reason, intending to continue the same, and if in the meantime and in the fall of the same year, defendant had the house built thereon, then such facts are not of themselves sufficient to prove an abandonment by the plaintiff of his possession, and if defendant relies upon such abandonment he must prove the same by a preponderance of evidence.Roy & Roy, for Appellant.
I. While the law protects those who honestly and in good faith take the actual possession of and make real improvements on land, it will refuse protection to mere gamblers in land, who cause to be instituted sham proceedings, possession or improvements. (Crispen vs. Hannavan, 50 Mo., 536, 548; Chapman vs. Templeton, 53 Mo., 463.)
L. H. Waters, for Respondent.
I. It was not necessary that plaintiff should remain upon the land, or that he should keep any one there. If his acts done upon the land indicated an intention to hold possession in himself, he could recover. (Bartlett vs. Draper, 23 Mo., 407; Humphrey vs. Jones, 3 Monr., 261; Chiles vs. Stevens, 3 A. K. Marsh., 333; see, also, Powell vs. Davis, 54 Mo., 315; Langworthy vs. Meyer, 4 Iowa, 18; Miller vs. Northrup, 49 Mo., 397.) Whether the defendant was in the actual possession at the commencement of this suit was a question of fact for the jury. (DeGraw vs. Prior, 53 Mo., 313.)
In these actions for forcible entry and detainer, the facts of the cases decided have been so variant, that it is difficult to deduce any general principle or rule from them.
What acts constitute possession is certainly for the court to decide--whether the acts have been done is for the jury; and the court may, with propriety, leave the whole matter to the jury, under proper instructions, where there is any evidence tending to show a bona fide prior possession.
Heretofore the court has gone very far in this direction; but if we go back to the case of Kincaid vs. Logue, (7 M. R., 167) it would be very plain that the plaintiff in this case had no possession of the land when the defendant made his farm of 70 acres on it.
In Kincaid vs. Logue, the plaintiff ran a worm fence round 200 or more acres, laid upon a worm with one, two, three, or sometimes four rails; and the idea of such an enclosure being called a fence was ridiculed by Judge Tompkins.
Here the plaintiff employed a man to plough a part of a day and break up in the half section some 1 12 acres, in the quarter now in controversy, some 5 8 of an acre, in the summer of 1868. The agent of plaintiff then left, and in the fall of 1868, the defendant had built on the land a cabin, either as agent of his son who had a deed for the land, or on his own account; and in the spring of 1869, enclosed and cultivated 70 acres. Neither the plaintiff nor any one for him ever had any further connexion with the land after the month...
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Hafner Manufacturing Company v. City of St. Louis
...of ejectment, as in the present case, then the possession is not such as will support the action of forcible entry and detainer. DeGraw v. Prior, 60 Mo. 56; v. Caruthersville, 146 Mo.App. 288. (7) While it is true that title is not in issue in a forcible entry and detainer suit, yet deeds o......
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... ... I ... Plaintiff claims, and sets up in his petition, " that on ... November 7, 1883, and for several months prior to that date, ... a gate in said fence (being the gate through which said horse ... went upon defendant's roadbed), was, and had been ... ...
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Underwood v. City of Caruthersville
...plaintiff to maintain this action. In suits of this character, what acts will constitute possession is a matter for the courts. [De Graw v. Prior, 60 Mo. 56.] the facts shown in evidence do not make it appear that plaintiff ever acquired open, equivocal, and well-defined possession of this ......
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McQuoid v. LaMb
...at the time defendant entered.” Armstrong v. Hendrick, 67 Mo. 542. As where plaintiff had entered and plowed and left his mark. DeGraw v. Prior, 60 Mo. 56. But to enter and plow only a few furrows is not sufficient. Edwards v. Cary, 60 Mo. 572. Nor to cut timber alone. Powell v. Davis, 54 M......