Keane v. Kyne

• Decision Date: 31 October 1877
• Citation: 66 Mo. 216
• Parties: KEANE, Appellant, v. KYNE.
• Court: Missouri Supreme Court

66 Mo. 216

KEANE, Appellant,

v.KYNE.

Supreme Court of Missouri.

October Term, 1877.

Appeal from St. Louis Court of Appeals.

Samuel Erskine and Jecko, Hospes & Jecko for appellant.Marshall & Barclay for respondent.

Plaintiff's own testimony showed that he was never in possession of the land for a moment. No principle of equity is better settled than that in order to maintain a suit to remove a cloud on title, the plaintiff must not only show a legal title to the land, but must prove himself in actual possession of the land in suit; the reason of this rule being that if plaintiff is not in actual possession of the land, and defendant is, then the plaintiff's remedy is at law, by ejectment; but if the land is in possession of a third person, it would be frivolous for a court of equity to adjudicate a dispute in which the subject-matter was in the power of a third party who might have a better title than either party in court. Hence courts of equity will not undertake to remove a cloud from title unless plaintiff establishes his actual possession to the land in suit. Orton v. Smith, 18 Howard 263; Polk v. Pendleton, 31 Md. 118; Herrington v. Williams, 31 Texas 448. Barron v. Robbins, 22 Mich. 35; Lake Road Co. v. Bedford, 3 Nevada 399; Harris v. Smith, 2 Dana 11; Alton Ins. Co. v. Buckmaster, 13 Ill. 205.

SHERWOOD, C. J.

The plaintiff seeks to remove what he terms a cloud upon his title to a certain lot in the city of St. Louis, caused, as he claims, by a forged deed purporting to have been executed by himself to defendant, in 1873. The answer denied plaintiff's ownership or possession of the lot, and the forgery of the deed, &c. The court entered a decree for the plaintiff, which was reversed at general term, and on appeal to the court of appeals, the petition was dismissed, and the plaintiff appeals here.

1. We approve the action of the court of appeals in dismissing the petition, and for the following reasons: We regard the evidence greatly preponderating in favor of the genuineness of the deed of February, 1873, notwithstanding plaintiff swore he did not execute it, and was disabled physically from such execution, at the time the instrument bears date, and the certificate of acknowledgement purports to have been made; and notwithstanding his testimony in the particular of disability finds support in that of others. His testimony as to non-execution is met by the certificate of acknowledgement of the notary, (since deceased,) by the testimony of two experts, who comparing the signatures of the defendant voluntarily made during the progress of the trial, with the signature in question, had no doubt as to the genuineness of the latter; by the fact, as plaintiff's own testimony shows, that his brother-in-law, Kyne, the husband of defendant...