F. Titus v. Tolle
| Decision Date | 16 July 1920 |
| Citation | 223 S.W. 885,284 Mo. 175 |
| Parties | F. TITUS, Appellant, v. LOUIS D. TOLLE |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.
Reversed and remanded (with directions).
F Titus for appellant.
The demurrer to the amended petition herein was improperly sustained in the court below, to the prejudice of appellant's rights. Sec. 2515, R. S. 1909; State ex rel. v. Dearing, 180 Mo. 53, 65. The remedy by injunction exists in all cases where either an irreparable injury to property is threatened or to prevent the doing of any legal wrong whatever, whenever in the opinion of the court and adequate remedy cannot be afforded by an action for damages. Lockwood v. Lunsford, 56 Mo. 75, 78; Turner v. Stewart, 78 Mo. 480; Tie Company v Stone, 135 Mo.App. 438; American Brewing Co. v. St Louis, 187 Mo. 381; Ferral v. Bradford, 50 Am. Dec. 296; Sills v. Goodyear, 80 Mo.App. 128.
MOZLEY, C. Railey and White, CC., concur.
This case was certified to this court by the Kansas City Court of Appeals for the reason that title to real estate is involved.
The action is one in equity and the only question presented here for determination is, does plaintiff's amended petition state a cause of action against the defendant?
Plaintiff claims to be the owner of the east 42 feet of Lots 17 and 18, in Phoenix Park, No. 4719 East 26th Street, Kansas City, Missouri, and that he has been in possession thereof since January 21, 1915. That defendant, Tolle, caused one Russell to invade (against plaintiff's will) and occupy said premises and the residence thereon, claiming to be the lessee of said Tolle, and by force and violence to eject and expel plaintiff therefrom. That Tolle's sole claim to said property is derived through a deed from one E. J. Adams, a woman, resident of Iowa, in 1894, who, it is alleged, never owned any estate in said property, but claimed remotely under one M. D. Leslie. On June 18, 1912, said Leslie executed a deed of trust containing the usual forfeiture clauses by which he conveyed said property in question to secure an obligation of his. For non-payment the deed of trust was forfeited, and a foreclosure sale was had on the 21st day of January, 1915, and plaintiff became the purchaser, took his trustee's deed therefor and took the actual possession of the premises. Shortly after said Russell abandoned the possession of the premises, plaintiff locked the doors of the dwelling thereon, fastened the windows and put padlocks on the out-houses, to prevent further forcible invasion of his premises, but in February, 1915, he found his premises occupied by one Goodman and all of his locks broken. Upon his refusal to deliver the possession to plaintiff, who exhibited his deed to him and demanded that he do so, plaintiff sued Goodman in forcible entry and unlawful detainer before a justice of the peace, but before the day on which the case was to be tried, before said justice, Goodman quit the premises. Plaintiff again took possession of his premises and again secured all doors and openings to the dwelling house thereon, with locks, but shortly thereafter, in March, 1915, one Wingo forcibly took possession thereof under said Tolle. Demand for the return of the possession thereof was made upon said Wingo by plaintiff and refused. Thereafter, upon due complaint by plaintiff before Judge Thomas, then presiding as judge of the assignment division of the circuit court, on March 11, 1915, a temporary writ of injunction was duly issued against said Tolle and all acting in his behalf, restraining them from entering upon said premises until the further order of the court. Thereupon Wingo quit the possession of said premises, and plaintiff again entered into the possession thereof and again locked the premises as before, and posted notices warning intruders against unlawfully entering therein. Nevertheless shortly thereafter plaintiff found that all of his locks had been removed, as well as the posted notices against trespassing, and his premises occupied forcibly by one W. E. Cooper and family, who claimed to have rented the premises from Cripes and Hanna, agents for-said Tolle. Cooper refused to give up the possession to plaintiff upon demand, and plaintiff sued him before a justice of the peace for forcible entry and unlawful detainer. On the day the case was to have been tried, said Tolle appeared and by his counsel claimed to own the title to the premises. Thereupon the justice, instead of certifying the cause to the circuit court as provided and required by Section 7460, Revised Statutes 1909, proceeded to, and did, render judgment for defendant and taxed the costs against plaintiff.
Does the petition state a cause of action? We think it does under the provisions of Section 2535, Revised Statutes 1909: it pleads that plaintiff is the owner in fee of said premises and claims that title, and sets forth with particularity how his claim of title was derived; it sets forth that defendant makes some claim of title or interest therein, and further sets forth, with particularity, how such claim was derived and alleges its invalidity. We think these averments were sufficient to invest the trial court with jurisdiction to ascertain and determine the title thereto between plaintiff and defendant and to adjudge their relative rights in and to...
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