Esther v. Burke

• Decision Date: 06 December 1909
• Citation: 123 S.W. 72
• Parties: ESTHER v. BURKE.
• Court: Missouri Court of Appeals

123 S.W. 72

ESTHER v. BURKE.

Springfield Court of Appeals. Missouri.

December 6, 1909.

1. FIXTURES (§ 14)—BETWEEN TENANT AND PURCHASER—FENCES—NOTICE OF PURCHASER.

If a wire fence built by a tenant was so placed that one viewing the farm would conclude that the fence was placed there for temporary use only, a purchaser of the farm was bound to inquire as to who owned the fence.

2. FIXTURES (§ 14)—BETWEEN TENANT AND PURCHASER—FENCES.

If a fence on a farm appeared to be a permanent one, a purchaser of the farm was entitled thereto, though it was erected by a tenant under an agreement with a former owner that he might remove it at the end of the term, unless the purchaser had actual notice of such agreement.

3. FIXTURES (§ 35)—NATURE OF IMPROVEMENTS—SUBMISSION TO JURY.

In an action by the purchaser of a farm for damages through the removal of a fence by defendant, a former tenant, who claimed the right of removal under an agreement with plaintiff's vendor, evidence held to warrant the submission to the jury of the question as to whether the fence appeared to be permanent or not.

Appeal from Circuit Court, Camden County; Argus Cox, Judge.

Action by Joseph E. Esther against E. J. Burke. Judgment for defendant, and plaintiff appeals. Affirmed.

S. C. Roach and C. H. Shubert, for appellant. I. W. Mayfield and L. C. Mayfield, for respondent.

GRAY, J.

January 7, 1908, this suit was commenced in the Camden county circuit court to recover damages sustained by reason of the respondent taking down and carrying away 160 rods of wire fence from the premises of appellant.

The respondent, on February 12, 1907, when one Nelson Lewis was the owner of the premises, rented said premises from him for a term ending March 1, 1908. In November, 1907, and while respondent was in possession of the premises as tenant of Lewis, appellant purchased said premises. The respondent answered, alleging that the wire fence removed by him was a temporary fence erected on said farm at his own expense, in order to get the benefit of certain pasture, and that it was understood between him and the landlord (Lewis) that he should have the right to remove said fence before the expiration of his lease. The appellant replied, denying such agreement and understanding, or that he had any knowledge thereof, and alleging that said fence was a fixture upon said farm of a permanent nature. At the trial the appellant offered testimony tending to prove the allegations of his petition and reply and respondent offered testimony tending to prove the allegations of his answer. The testimony showed that the appellant, just previous to the occupation of the premises by respondent, occupied the same as the tenant of Lewis, and, after the respondent took possession of the premises, went upon the same to remove certain hay he had thereon. While he was upon the property, the respondent testified appellant (speaking of Lewis) said to him: "That he would not furnish any fencing for cutting off any pastures, or for fencing any haystacks, or anything of that kind." This wire fence was not upon the property at that time, and this was several months before the appellant purchased the farm. The testimony in behalf of respondent tended to prove that the fence was of a temporary nature, and that this was apparent to persons observing it. It ran parallel with another fence upon the property, and nearly all the posts used were pieces of fence rails, and part of the fence was fastened to small trees on the farm.

The appellant asked two instructions, which were by the court refused, as follows: "(1) The court instructs the jury that if you find from the evidence that defendant, Ed J. Burke, was on the last of December, 1907, or first of January, 1908, in possession of the John Thompson farm in ...