Falconer v. Roberts

• Citation: 88 Mo. 574
• Parties: FALCONER v. ROBERTS, Appellant.
• Decision Date: 30 April 1886
• Court: United States State Supreme Court of Missouri

88 Mo. 574

FALCONER

v.ROBERTS, Appellant.

Supreme Court of Missouri.

April Term, 1886.

Appeal from Carroll Circuit Court.--J. L. MIRICK, ESQ., Special Judge.

AFFIRMED.

Hale & Sons for appellant.

(1) The court erred in assessing the damages. There is no evidence that the land not in cultivation was worth anything. See sec. 2252, R. S.; Robidoux v. Casseleggi, 81 Mo. 459. (2) The instructions for plaintiff, if given by the court as shown by the record, are wholly unauthorized by the law or the facts. (3) Defendant's first instruction should have been given. Plaintiff cannot recover on this petition against his co-tenant. Northrup v. Wright, 24 Wend. 221; Lapeyre v. Paul, 47 Mo. 586; Warfield v. Lindell, 30 Mo. 272; Ragan v. McClurg, 29 Mo. 356. The answer being a general denial, is not evidence of the ouster at the time alleged in the petition. La Riviere v. La Riviere, 77 Mo. 512. (4) Defendant's third instruction should have been given. Plaintiff cannot recover damages, rents and profits based wholly on the improvements which his co-tenant had made. G. S., ch. 151, secs. 20, 22; Fenwick v. Gill, 38 Mo. 510. (5) The court erred in refusing to give the fourth and fifth instructions asked by defendant. Defendant was not liable for rents and profits. 1 Wash. on Real Prop. [4 Ed.] p. 662, secs. 3, 15; Sargent v. Parsons, 12 Mass. 149; Calhoun v. Curtis, 4 Met. 413; Keisel v. Earnest, 2 Pa. St. 90; Kline v. Jacobs, 68 Pa. St. 57; Israel v. Israel, 30 Md. 120; 60 Barb. 163; 52 Ill. 332. (6) There is nothing in the record to show an ouster. Possession alone for an unlimited time does not constitute an ouster. There must be open and notorious acts of exclusive ownership. Warfield v. Lindell, 30 Mo. 272; 38 Mo. 583. Trespass or ejectment cannot be maintained by one co-tenant against another unless he has been actually ousted or expelled from the premises. Murray v. Hall, 7 C. B. 441, 554; Stilloway v. Brown, 12 Allen, 37.

Lewis A. Chapman for respondent.

(1) The court did not err in estimating the monthly rents and profits. (2) The court properly refused the first instruction asked by defendant. The ouster in the case was admitted by the generel denial; but there was plenty of evidence of an ouster, a portion of which defendant has left out of his abstract. La Riviere v. La Riviere, 77 Mo. 512; Peterson v. Laik, 24 Mo. 514; Sedgwick and Wait's Trial of Titles to Land, sec. 283, p. 168; Siglar v. Van Riper, 10 Wend. 414; Harrison v. Tabor, 33 Mo. 311; Miller v. Myers, 46 Cal. 535; Greer v. Tripp, 56 Cal. 209. No proof of actual physical force or turning out by the “shoulders” or the “heels” is necessary. Gale v. Hinds, 17 Fla. 773; Doe v. Prosser, Cowper, 217. The court had a right to infer an ouster from the evidence of a demand of possession, and a refusal on the part of the defendant which was uncontradicted. Miller v. Myers, 46 Cal. 535; Greer v. Tripp, 56 Cal. 209; Sedgwick and Wait's Trial of Titles to Land, p. 168, sec. 283. The denial of plaintiff's title, accompanied by an exclusive claim of possession, and receipt of the whole profits, is sufficient to establish an ouster. Alexander v. Kennedy, 19 Texas, 488; Siglar v. Van Riper, 10 Wend. [N. Y.] 414; Humbert v. Trinity Church, 24 Wend. 587. (3) Defendant has no right to complain of the court's refusal to give the fourth and fifth instructions asked by him. He could not recover in this action for the improvements, and certainly not without proving their value and asking for them. Wash. on Real Prop., 645, 653; Dech's Appeal, 57 Pa. St. 472; Israel v. Israel, 30 Md. 128. Defendant made these improvements with full knowledge that another party owned one-third interest in the land.

RAY, J.

This is an action of ejectment to recover certain described land in Carroll county, Missouri. The petition is in the usual form. The answer admits the possession of defendant, and is otherwise a general denial. The cause was tried before Hon. John L. Mirick, sitting as a special judge, and was tried by the court without the intervention of a jury. The court found for the plaintiff for an undivided one-third of the land described in the petition; assessed the damages at the sum of two hundred dollars, and the rents and profits at the sum of $16.66 2/3 per month, and rendered judgment in the usual form from which defendant has appealed.

Plaintiff and defendant are tenants in common in the premises in suit, the plaintiff being the owner of an undivided one-third interest in the land, and the defendant the owner of the undivided two-thirds interest therein. This, however, does not appear by the pleadings, but only by the evidence in the cause. The plaintiff in his petition does not set out the true interests of the parties, either plaintiff or defendant, according to their respective titles, but claims the whole tract and the right of possession to the whole tract; and it is contended in the first place for defendant that he cannot recover under such a petition, which treats the defendant as a trespasser and stranger, and wholly ignores the rights of defendant and the relation of co-tenancy. As to this it may be said, that the action of ejectment is a remedy afforded by the law where one tenant in common has been dispossessed by his co-tenant from the whole or any portion of the lands held in common. Our statute declares what the petition shall contain by way of necessary averments in actions of ejectment, and the petition in this case is in the prescribed form and contains the allegations required by the statute. Where the action, as in this case, is by one tenant in common against his co-tenant, section 2248 provides that plaintiff shall be required to show on the trial that the defendant actually ousted him, or did some act amounting to a total denial of his right as such co-tenant. Where, then, such action is authorized, the form prescribed therefor is a sufficient statement of plaintiff's cause of action, and if upon the trial between co-tenants the proof shows the ouster or act amounting to a total denial of plaintiff's right, a recovery may be had by one tenant in common against his co-tenant under a petition in the ordinary form prescribed for the action of ejectment. The principal question to be determined in the case is whether the defendant has excluded or ousted plaintiff from the possession of the common estate. As to this it is suggested and contended by plaintiff that defendant's answer of general denial is an admission that his possession is adverse and equivalent to a confession of ouster superseding the necessity of proof on the trial. La Riviere v. La Riviere, 77 Mo. 512; 24 Mo. 541; 33 Mo. 211.

If plaintiff had declared on his title as it in fact was, and demanded possession of his true interest, there could be no doubt that such denial in the answer would have been an admission and sufficient evidence of ouster. The petition, however, being in the usual form employed in actions of ejectment, ignores the relation of co-tenancy and treats the defendant as an entire stranger and trespasser, and claims the right to the sole and exclusive possession of the whole tract. The answer denies these allegations and it is, to say the least of it, doubtful whether there is under this state...