Gibson v. Tong

• Decision Date: 31 October 1859
• Citation: 29 Mo. 133
• Parties: GIBSON, Respondent, v. TONG, Appellant.
• Court: Missouri Supreme Court

29 Mo. 133

GIBSON, Respondent,

v.TONG, Appellant.

Supreme Court of Missouri.

October Term, 1859.

1. In an action for a forcible entry and detainer the title to the premises can not be inquired into. Mere title in the plaintiff at the time of the alleged entry, unaccompanied by possession, can avail him nothing.

2. Instructions given to a jury should be supported by the evidence.

Appeal from St. Francois Circuit Court.

The instructions given by the court and referred to below in the opinion are as follows: “1. If the jury find that Reed held possession of the premises in controversy exclusively and in his own right, and that he let a part of the premises to Palmer, directing him to pay rent to the plaintiff, and surrendered the other tenements to Gibson by delivering to him the keys, and that after thus gaining possession, and after Palmer had left the occupancy, Tong, the defendant, entered on the possession of Gibson and assumed the occupancy, then they will find a verdict for the plaintiff and assess his damages for the detention thereof, and also find what is the monthly value of the premises. 2. But if the jury find that Alfred Reed held possession of the premises in controversy for the firm of Evans & Reed, of which he was a partner, and that without the knowledge or consent of Evans, his co-proprietor, he admitted Palmer into the occupancy of part of the premises, and surrendered the whole to Gibson by directing Palmer to pay his rent to him and delivering up the keys of the other tenement, then the possession thus taken by Gibson was a wrongful possession and conferred no such right to the possession as can be made a sufficient basis for a recovery in the cause.”

Frissell, for appellant.

Noell, for respondent.

SCOTT, Judge, delivered the opinion of the court.

This was a writ of forcible entry and unlawful detainer brought by the plaintiff Gibson against the defendant Tong. The cause was taken by certiorari from the justice to the circuit court, where the plaintiff had judgment.

The sixteenth section of the act concerning forcible entries and unlawful detainers directs that when the jury is sworn the justice shall cause the complaint to be read to them, and then call upon the plaintiff for proof to sustain the same; but the complainant shall not be compelled to make further proof of the forcible entry or detainer than that he was lawfully possessed of the premises, and that the defendant unlawfully entered into and detained or unlawfully detained...