Duncan v. Able

• Decision Date: 21 December 1889
• Citation: 12 S.W. 796,99 Mo. 188
• Parties: DUNCAN v. ABLE.
• Court: Missouri Supreme Court

12 S.W. 796

99 Mo. 188

DUNCAN v. ABLE.

Supreme Court of Missouri.

December 21, 1889.

EJECTMENT — INSTRUCTION.

In ejectment, where the plaintiff claimed title by virtue of a sheriff's deed under a sale on a judgment against defendant's lessor, the defendant claimed that his lessor was in possession as agent of a third person merely. Held, that an instruction that if the jury believed defendant's lessor was in possession of the premises, and afterwards the defendant acquired possession through him, and was in possession at the time the suit was begun, the jury should find for plaintiff, is erroneous, and is not cured by an instruction that if the jury believe defendant's lessor was in possession as the agent of such third person, and not in possession himself, their verdict should be for defendant.

Appeal from circuit court, Lincoln county; E. M. HUGHES, Judge.

This is an action of ejectment to recover four-fifths of a tract of land. Plaintiff claims title by virtue of a sheriff's deed under a judgment against Henry A. Forgey, and a sale in March, 1884. His other evidence tended to show that the latter lived on the land in 1882-83; rented it to tenants in 1884 and 1885, claiming it as his own, and offering to sell it; and that he made a deed of trust for it in 1884 to secure a debt. Defendant's evidence, in so far as it related to the plaintiff's claim, tended to prove that the possession of Henry A. Forgey was merely as agent for Thomas J. Forgey, his father, who claimed title as tenant by the curtesy. At the trial the court declared the law as follows for plaintiff, viz.. "If the jury believe from the evidence that Henry A. Forgey, at the date of the sale mentioned in the sheriff's deed, read in evidence, was in the possession of the premises sued for, and that afterwards the defendant Able acquired possession from or through said Henry A. Forgey, and was in the possession of the said premises at the institution of the suit herein, to-wit, on the 12th day of March, 1886, then the jury will find for the plaintiff that he recover the land sued for, and will assess the value of the monthly rents and profits as they shall find from the evidence that the rents and profits are reasonably worth, not exceeding the amount claimed in the petition." The court also gave the following instruction of its own motion, viz.: "If the jury believe from the evidence that Henry A. Forgey was acting as the agent of Thomas J. Forgey in renting the lands to Story or...