Edwards v. Cary

• Decision Date: 31 May 1875
• Citation: Edwards v. Cary, 60 Mo. 572 (Mo. 1875)
• Parties: JAMES EDWARDS, Respondent, v. ROBERT CARY, Appellant.
• Court: Missouri Supreme Court

60 Mo. 572

JAMES EDWARDS, Respondent,

v.ROBERT CARY, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Carroll Circuit Court.

Hale & Eads, for Appellant cited Garrison vs. Savignac, 25 Mo., 47; King vs. St. Louis Gas Light Co., 34 Mo., 34; Harris vs. Gurner, 46 Mo., 438.

L. H. Waters, for Respondent, cited Bartlett vs. Draper, 23 Mo., 407; Miller vs. Northrup, 49 Mo., 397; DeGraw vs. Prior, 53 Mo., 313; Powell vs. Davis, 54 Mo., 315; Beeler vs. Cardwell, 29 Mo., 72; McCartney's Adm'r vs. Alderson, 45 Mo., 35.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff brought his action for forcible entry and detainer. The cause was tried before the court without the intervention of a jury, and a judgment was rendered in his favor. The evidence for the plaintiff tended to prove that he took possession of the land in controversy under a claim of title in July, 1870, and made some improvements thereon; and that in the spring of 1871, defendant, without his consent, took the possession and kept it; that when he first went into possession the land was uncultivated and unoccupied.

For the defendant there was evidence to show that his grantor, Withers, had been in possession many years prior thereto and had built a house on the land and inclosed a field; that the house was torn down and the rails removed or destroyed, but there were still traces that the field had been in cultivation. The improvements disappeared in 1868, after that the cultivation ceased; but Withers, who did not reside in the county, occasionally came back in the neighborhood to superintend and look after the land, and it was known generally as his.

For the plaintiff the court gave three instructions, which although somewhat objectionable when taken singly and apart, yet when taken as a whole and together, were correct enough; and, as the cause was tried by the court, they cannot be regarded as misleading.

The first thing that the plaintiff did, when he entered the land and commenced his work thereon in July, 1870, was to plow a few furrows across a portion of it, and as to this act, the court declared, for the defendant, that the alleged entry on the land and plowing a few furrows across a portion of it, was not such an actual possession as would authorize a verdict for the plaintiff. This was a correct presentation of the law, on defendant's side. Something more was required, showing an intention to possess, accompanied with acts indicating that purpose.

In reference to the possession of Withers, either by himself or his tenant, and whether he had abandoned it previous to plaintiff's acquiring his right, the court instructed that any act done by the owner of land after his tenant has left it, indicating his intention not to abandon it, but to hold the possession to himself will continue the possession in...