Houck v. Patty

• Decision Date: 17 March 1903
• Citation: 100 Mo. App. 302,73 S.W. 389
• Parties: HOUCK et al. v. PATTY et al.
• Court: Missouri Court of Appeals

73 S.W. 389

100 Mo. App. 302

HOUCK et al. v. PATTY et al.

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

EQUITY — PLEADING — DEPARTURE — TRESPASS —CUTTING TIMBER—INJUNCTION—PARTIAL DEFENSES — CONVEYANCE PENDING SUIT — PAROL EVIDENCE — FRAUDULENT DEEDS—EVIDENCE—CONSTITUTIONAL LAW— REVIEW BY APPELLATE COURT.

1. Where a petition alleged that plaintiff was the owner of certain timber lands; that defendants were wrongfully cutting timber therefrom; that the timber constituted the principal value of the land; and that if defendants, who were insolvent, were not enjoined, plaintiff would be deprived of the timber without any adequate remedy at law; and prayed an injunction—an amended petition, alleging the value of the timber which had been removed to be $500, and another paragraph, alleging generally that plaintiff had been damaged, but neither stating in what sum nor praying judgment therefor, was not subject to a motion to strike, as a departure from the original petition.

2. In an action to restrain defendants from cutting timber on land alleged to belong to plaintiff, an answer alleging that on the ____ day of October, 1900, plaintiffs conveyed to a corporation all their right, title, and interest to the timber growing on the land described was available only to limit the scope of plaintiff's recovery as a partial defense.

3. In a suit to restrain defendants from cutting timber on land alleged to belong to plaintiff, parol evidence that since the institution of the suit plaintiffs had conveyed the timber to a third person was inadmissible over objection that the deed was the best evidence thereof.

4. Where swamp lands donated to the state were patented to a county, and conveyed by the grantee through mesne conveyances to plaintiff,

as authorized by Act Gen. Assem. Oct. 26, 1857, an objection that the conveyance from the county was void must be based on the ground that the act was unconstitutional and therefore is not within the jurisdiction of the court of appeals.

5. Where swamp lands were conveyed by a county, to which they were patented by the state, by mesne conveyances to plaintiff, and plaintiff had been in actual possession of a part of the land by a tenant claiming title to the whole, her title thereby acquired was superior to a title acquired by virtue of an execution sale of the land on a judgment against the county, after the county had parted with its title.

6. Where, in a suit to restrain defendants from cutting timber on plaintiff's land, plaintiff alleged that deeds under which defendants claimed were shams, and manufactured for the purpose of defeating criminal prosecutions for taking the timber, plaintiff was entitled to show such facts at the trial in order to invalidate such conveyances.

Appeal from Circuit Court, Iron County; Frank R. Dearing, Judge.

Action by Mary H. G. Houck and others against John Patty and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

L. R. Thomason, for appellants. H. S. Shaw, for respondents.

BLAND, P. J.

Omitting caption, the petition is as follows: "Plaintiffs state that they are husband and wife, and further state that they are seised and possessed in fee of, in, and to the following described land, situate in Stoddard county, Mo., to wit: All of section twenty-four (24); all of section twenty-five (25); all of section twenty-six (26); all of section twenty-seven (27); all of section twenty-nine (29); all of section thirty-six (36); and all of the W. ½ of section thirty-four (34); and all of the E. ½ of section thirty-one (31); the N. ½ and S. W. ¼ of section No. thirty-five (35); the S. ½ of the N. E. ¼, and the S. ½ of S. E. ¼, and the S. W. ¼ and the W. ½ of the N. W. ¼, and the S. E. ¼ of the N. W. ¼ of section thirty-three (33); also the E. ½ of the S. E. ¼, and the S. W. ¼ of the S. E. ¼, and the N. E. ¼ of section twenty-three (23); and all in township twenty-four (24), range eleven (11) east, in Stoddard county, Mo. That on or about the 10th day of February, 1898, the defendants, and other persons in the employ of the defendants and under their directions, and whose names are unknown to plaintiffs, did threaten to unlawfully enter upon the above-described land, and did, by themselves, their agents, servants, and employés, whose names are unknown to plaintiffs, enter upon the premises described above, and the property of the plaintiffs then and now, and have continuously from said date threatened to unlawfully and forcibly, and against the will of plaintiffs, to cut down from off said lands ties and timber standing and growing thereon, consisting of trees of great number and of great value, and to remove the same from off said land, and that the defendants, their agents, servants, and employés, have, ever since the 10th day of February, 1898, and prior to that day and date, been engaged in unlawfully entering upon the described lands of the plaintiffs, and have continuously from said date been guilty of unlawfully and forcibly, and against the will of plaintiffs, of cutting down upon said land aforesaid a large number of valuable trees growing and standing on said lands, and being thereon at said times, and have removed and are about to remove the trees cut and severed from the said land, and are threatening to appropriate and have appropriated the same to their own use and benefit of defendants. That the defendants then well knew and still know that the plaintiffs are the legal owners of the said land, and defendants then knew and still know that they did not have then and they have not now any right, title, claim, or interest in and to said real estate, or the trees and timber thereon, save and except such as they have manufactured and executed among themselves, or caused to be fraudulently made and manufactured to protect themselves from being criminally prosecuted for theft, and to force these plaintiffs to prosecute their action against them at great cost in the civil courts of this state. Plaintiffs further state that the defendants, by the means aforesaid, are still carrying on the trespasses above pleaded, and that they threaten to continue the same in the manner and by the means aforesaid, unless restrained by this court. Plaintiff...