Dyer v. Krackauer

• Decision Date: 15 May 1883
• Citation: 14 Mo.App. 39
• Parties: THOMAS W. DYER ET AL., Appellants, v. FRED. KRACKAUER, Respondent.
• Court: Missouri Court of Appeals

14 Mo.App. 39

THOMAS W. DYER ET AL., Appellants, v. FRED. KRACKAUER, Respondent.

Court of Appeals of Missouri, St. Louis.

May 15, 1883

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

E. P JOHNSTON and THOMAS A. RUSSELL, for the appellants: This is an action at law, in the strict sense of the term, under the statute, section 3562 (Harrington v. Utterback, 57 Mo. 519 and 521), and is distinct from an equitable action examples of which are to be found in Taylor v Ulrici (19 Mo. 89) and Pattison v. McCamant (28 Mo. 210). The court erred in excluding the evidence of title offered by appellants, as the statute specifically required them to set forth their estate, showing that it was at least an unexpired term of ten years, and they could not have recovered without evidence of possession and title to that extent.-- Campbell v. Allen, 61 Mo. 581; Bredell v. Alexander, 8 Mo.App. 110; Brown v. Matthews, 117 Mass. 506. The possession must be a pedis possessio, defined by Taylor in his " Law Glossary" to be " a foothold; a trespasser; what is termed ‘ a squatter." DDD'-- Von Phul v. Penn, 31 Mo. 333; Rutherford v. Ullman, 42 Mo. 216; Babe v. Phelps, 65 Mo. 27. And the moment respondent allowed his fence to disappear, the possession of these lots invested in appellants.-- May v. Luckett, 48 Mo. 472. And this notwithstanding the tract was divided into blocks and lots.-- Williams v. Ballance, 23 Ill. 193; affirmed in Hassett v. Ridgway, 49 Ill. 197; Janes v. Patterson, 62 Ga. 527; Hubbard v. Austin, 11 Vt. 129. It is immaterial how appellants obtained possession, even if by fraud or actual force.-- Reed v. Caldwell, 32 Cal. 109; Calderwood v. Brooks, 45 Cal. 519; Scorpion M. S. Co. v. Marsano, 10 Nev. 378; Goldberg v. Taylor, 2 Utah 486 and 492; Steele v. Fish, 2 Minn. 153; Murphy v. Hinds, 15 Minn. 182. And a fence always constitutes a legal possession.--Rev. Stats., sects. 5651, 5652; King v. St. Louis Gas-Light Co., 34 Mo. 34 and 38; Campbell v. Allen, 61 Mo. 581; Southmayd v. Henly, 45 Cal. 101; Gillispie v. Jones, 47 Cal. 259.

CLINE, JAMISON & CLINE, for the respondent: Evidence of title in the plaintiffs was inadmissible.-- Rutherford v. Ullman, 42 Mo. 216. Plaintiff must show a beneficial possession which he can not abandon, and himself bring the action of ejectment without injury to his interest. A nominal possession is insufficient.-- India Wharf v. Central Wharf, 117 Mass. 504; Brown v. Matthews, 117 Mass. 506; Tompkins v. Wyman, 116 Mass. 558; Byrne v. Hinds, 16 Minn. 521; Comstock v. Henneberry, 66 Ill. 212; Cf. Jackson v. Schoonmaker, 2 Johns. 234. Possession gained through sharp practices or fraud will be ignored by the court.-- Rutherford v. Ullman, 42 Mo. 216; Stetson v. Cook, 39 Mich. 750, 755; Tichenor v. Knapp, 6 Ore. 205. The possession must be bona fide.-- Stetson v. Cook, 39 Mich. 750-755; Hardin v. Jones, 86 Ill. 316; Comstock v. Henneberry, 66 Ill. 212; 20 Am. L. Reg. 561, 570.

OPINION

LEWIS P. J.

This is a proceeding to quiet title, under section 3562 of the Revised Statutes. The circuit court gave judgment for the defendant.

The two lots in controversy have never been occupied otherwise than by the several acts of fencing hereinafter described. The plaintiffs undertook to show a chain of title to the fee in themselves, of a larger tract, including these lots, and an actual occupancy by their tenants of other lots within the tract, but not in the same block with the lots in controversy. The court properly excluded this testimony. There is no question about title in this proceeding All such questions are distinctly excluded by the very nature and purposes of the action, which assumes that another suit is necessary to try the title; wherefore the defendant should be directed to begin it. The statute does not require the plaintiff to show that he has any title; but only that he claims " an estate of freehold, or an unexpired term of not less than ten years," and has the premises in possession. As to what he claims, an averment in the petition will suffice, and will not be issuable, nor can there be any proof of title for the mere purpose of raising the legal presumption of possession, which follows the fact of title. This presumption originates in the courts for certain purposes looking to the ends of justice. It will not satisfy the statute, which demands, not a judicial presumption, such as may arise in the progress of litigation, but the fact of possession, really existing before the action is begun. A man may have an undisputed title to a tract of land which neither he nor any one claiming under or acting for him has ever occupied, or even seen. The courts, for the purpose of protecting him against injury by trespassers, will recognize a constructive possession in his favor. But there is no real possession in the case; and, therefore, nothing that would satisfy the statute we are considering.

It should always be borne in mind that the statutory proceedings to quiet title was never intended as a substitute for the action of ejectment. It assumes that the complainant can not maintain ejectment, because he already enjoys an exclusive and undisturbed possession. If, therefore, so far as the element of possession, or the want of it, is concerned, he might maintain ejectment against an adverse claimant, this statutory proceeding is not for him. No court can properly permit him, in such case, to change, by ruse or contrivance, the relations between contending claimants, so that the right or duty to sue in ejectment shall be shifted from him to the other party. On the other hand, it is the settled construction of this statutory proceeding, that it will not be denied to a party who, in order to bring ejectment, would be compelled to abandon an actual, accustomed, and beneficial use and possession. Munroe v. Ward, 4 Allen 150.

Counsel for the plaintiffs argue that they could not sue in ejectment, because the lots were unoccupied, and it was impossible to show a hostile possession in the defendant. They refer to a number of cases in which possession is defined with reference to the statute of limitations, or the action of forcibly entry and detainer. But we know of no case in which it is held that the same open, notorious, actual exclusive, adverse and continuous possession so defined, must be fixed upon the defendant in an action of ejectment. On the contrary, it is held that one whose enjoyment of his real estate is wrongfully interfered with, may, at his election, often treat the wrong-doer as a disseisor, although not himself actually ousted or dispossessed. Smith v. Burtis, 6 Johns. 215; Prescott v. Nevers, 4 Mason 329. In such a case of election, however, the party suing in ejectment must abandon his possession while the action is pending. Munroe v. Ward, supra; Burns v. Lynde, 6 Allen 312. In the ancient action of ejectment, it was sufficient to allege in the declaration a mere entry by...