Gooch v. Hollan

• Decision Date: 23 April 1888
• Parties: NANCY J. GOOCH and JOSEPH GOOCH, Respondents, v. GEORGE HOLLAN, Appellant.
• Court: Kansas Court of Appeals

30 Mo.App. 450

NANCY J. GOOCH and JOSEPH GOOCH, Respondents, v. GEORGE HOLLAN, Appellant.

Court of Appeals of Missouri, Kansas City.

April 23, 1888

APPEAL from Linn Circuit Court, HON. G. D. BURGESS, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action of unlawful detainer, or disseisin, instituted in a justice's court, and tried on appeal in the circuit court. On the trial the plaintiffs, who are husband and wife read in evidence a deed from one Warner conveying the premises in question to the plaintiff Nancy Gooch, dated January 26, 1882. On the ninth day of December, 1882, the plaintiff Nancy, through one Evans, rented the said property to one Heck until the first day of March, 1883. Heck so entered and occupied the property until the first day of March, 1883; when he declined to further rent from plaintiffs. One Botts, in the meantime having sold the premises under an execution to satisfy a judgment in his favor against said Joseph Gooch, and on exhibition to Heck of the sheriff's deed therefor, and demanding the premises Heck attorned to Botts, and took a lease from him, dated March 3, 1883, to run until the third day of March, 1884. Thereafter the plaintiffs instituted an action of unlawful detainer, for the recovery of the possession of the premises against Heck. That cause was tried on appeal in the Linn circuit court, December 9, 1884, in which judgment went in favor of defendant Heck. This proceeding and judgment the defendant Hollan here offered in evidence, and the court rejected the same.

Before the trial of said cause of plaintiffs against Heck, Heck went out of the possession, and said Botts leased the same to the defendant Hollan, who entered as lessee under Botts; when plaintiffs instituted this action against Hollan.

The plaintiffs' evidence tended to show that after Heck vacated the premises, they went and fastened down the windows in the house, and locked the door, and afterwards found the defendant therein.

The defendant's evidence tended to show that when Botts leased the premises to defendant, on the going out of Heck he found the door of the building open, and no one in possession. The defendant also offered in evidence the record of the proceedings and judgment in a cause of said Botts against said Nancy Gooch and husband, in said circuit court, which was a bill in equity, to set aside the said deed from Warner to said Nancy, on the ground that she held the title fraudulently as against Botts the creditor of said Joseph Gooch, and to vest the title in said Botts. The decree in favor of Botts was rendered on the twenty-ninth day of August, 1884. The judgment in the case now on appeal was rendered in December, 1886. The court also rejected said evidence.

On this state of the proofs the court, among others, instructed the jury that, under the evidence, the verdict of the jury must be for the plaintiffs.

L. T. COLLIER, for the appellant.

I. The court erred in admitting as evidence the paper writing, dated December 9, 1882, and signed by Joseph Heck, purporting to rent the premises in question; and further erred in permitting the witness Evans to testify (against the objections of defendant) as to such renting, and declarations then and there made by said Heck. Seifert v. Withington, 63 Mo. 577; Reed v. Bell, 26 Mo. 217; Armstrong v. Hendrick, 67 Mo. 542; De Graw v. Prior, 53 Mo. 313; Miller v. Tilman, 61 Mo. 318.

II. The court erred in excluding from the jury the record and proceedings in the case of Nancy J. and Joseph Gooch against Joseph Heck, the complaint therein being for alleged unlawful detainer of the premises in dispute in this case, and filed March 12, 1883, and judgments by the Linn circuit court, December 9, 1884, in favor of the said Heck, for the proprietors. Henry v. Woods, 77 Mo. 280; Freeman on Judgments, sec. 171; Ins. Co. v. Cravens, 69 Mo. 76; 1 Greenl. Evid., sec. 538; Cooley v. Warren, 53 Mo. 169.

III. The court below further erred in excluding from the jury as evidence the record and proceedings in the equity suit of Seth Botts against Nancy J. and Joseph Gooch, made returnable to the June term, 1883, of the Linn circuit court, and the decree therein, dated August 29, 1884, divesting Nancy J. Gooch of the title to the premises in question, and vesting the same in Seth Botts. Barclay v. Pickles, 38 Mo. 145; Pentz v. Kuester, 41 Mo. 447; Gunn v. Sinclair, 52 Mo. 327; Bigelow on Estoppel [Ed. 1872] 21.

IV. The court erred in giving the instructions asked by the plaintiffs, Gooch and Gooch.

V. The court erred in refusing to give the instructions asked by defendant Hollan.

VI. The court erred in overruling defendant's motions for a new trial and in arrest of judgment.

A. W. MULLINS, for the respondents.

I. The plaintiff, Mrs. Gooch, by her tenants had been in the actual occupancy of the premises in question for more than a year when Joseph Heck, at the end of his term as her tenant, refused to surrender up the possession to her and thereupon accepted a lease from an adverse claimant of the title to the property. But at the end of Heck's term Mrs. Gooch was entitled to the possession, and the lease from Seth Botts to said Heck, as against Mrs. Gooch, was illegal and void, and so, the subsequent lease from said Botts to the defendant Hollan was without validity or legal effect as against Mrs. Gooch. Her right to the possession still remained. The claim of title by said Botts, attempted to be interposed as a defence by the defendant, was properly excluded by the court. Warren v. Ritter, 11 Mo. 354; May v. Luckett, 48 Mo. 472; Spalding v. Mayhall, 27 Mo. 377; Stone v. Malot, 7 Mo. 158; Gibson v. Tong, 29 Mo. 133; Edwards v. Cary, 60 Mo. 572; Silvey v. Summer, 61 Mo. 253; Rev. Stat., secs. 2433, 2443.

II. The court committed no error in refusing to admit in evidence as a bar to this suit the record in the case of Gooch and wife against Heck. The proceedings were not between the same parties. The judgment was not upon the merits, but solely upon the ground of insufficient notice to Heck before commencing suit. And that adjudication did not and could not affect Mrs. Gooch's right to recover possession in this case against defendant Hollan. 1 Greenl. on Evid., secs. 524, 530; Beeler v. Cardwell, 29 Mo. 72; Krevet v. Meyer, 24 Mo. 107; Henry v. Woods, 77 Mo. 279.

III. The court committed no error in sustaining plaintiffs' objections and excluding the evidence in the case of Botts v. Gooch and wife, because the title to the property was not in question, and the parties were not the same in the two cases. Nor was the evidence admissible for any other competent purpose. See authorities, supra.

IV. No material error is disclosed by the record, and the judgment is for the right party.

PHILIPS P. J.

I. This cause will have to be remanded for further trial, for the error of the court in directing the jury to return a verdict for the plaintiffs. Such an instruction was disapproved of in the parallel case of ...