Kelpe v. Kuppertz

• Decision Date: 01 July 1911
• Citation: 139 S.W. 335,235 Mo. 479
• Parties: KELPE v. KUPPERTZ et al.
• Court: Missouri Supreme Court

139 S.W. 335

235 Mo. 479

KELPE v. KUPPERTZ et al.

Supreme Court of Missouri, Division No. 1.

July 1, 1911.

1. EJECTMENT (§ 81) — PLEADING AND PROOF.

Ejectment being, under Rev. St. 1909, § 2382, purely a possessory action, no allegation or proof is necessary, except such as goes to the right of possession as between plaintiff and defendant, so that plaintiff need not necessarily go back to the government for his title.

2. EJECTMENT (§ 95) — SUFFICIENCY OF EVIDENCE — RIGHT TO POSSESSION.

Evidence in ejectment held insufficient to show that plaintiff had been in possession of the land, claiming title thereto, and had been ousted by defendants, and so had right of possession against them.

3. TRIAL (§ 45) — RECEPTION OF EVIDENCE.

To put the court in error, after it announces its intention to require plaintiff in ejectment to deduce his title from the government, it is necessary for plaintiff to offer evidence tending to show that, as against defendants, he is entitled to possession of the premises, and then, if this be excluded, to except thereto.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by William C. Kelpe against Conrad Kuppertz and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Ejectment commenced in the St. Louis circuit court January 2, 1907, to recover 2½ feet of land off the south side of lot 7, in city block 3034, in the city of St. Louis. The answer is a general denial, with plea of adverse possession for more than 10 years, to which the plaintiff replied. The plaintiff at the trial offered in evidence a deed dated February 29, 1868, from Hermann Bleek, trustee in a deed of trust in the nature of a mortgage executed by one Schoenherr and wife, and dated January 17, 1867. The trustee's deed purported to convey to one Peter Weiss certain lands in St. Louis. The subsequent proceedings in the trial are related in the bill of exceptions as follows: "Defendants' counsel objects to the introduction of the deed as being incompetent, irrelevant, and immaterial, because it does not show any title in Schoenherrs' trustee, and does not describe the ground contained in plaintiff's petition. Plaintiff's counsel states that he expects to show it covers the same ground. Defendants' counsel states that there is no common source of title between the plaintiff and defendants, and that plaintiff will have to go to the government for his title. Defendants claim under no deed or paper title. Plaintiff's counsel states that he will show that Peter Weiss was the common owner of both lots 7 and 8, including the strip in question, and then follow ownership to plaintiff as to lot 7. The court states that the plaintiff will have to go back to the government to prove his title. Plaintiff's counsel duly excepts to the ruling of the court. W. C. Kelpe, sworn in his own behalf, testifies as follows: "Q. What is your name? A. William C. Kelpe. Q. You are the plaintiff in this case? A. Yes, sir. Q. What is the number of the property we are suing for, the two feet and six inches? A. 7123 Virginia avenue. Q. How long have you lived there? (Defendants' counsel objects.) A. Since 1875. Q. How long have you been in possession of this lot? (Defendants' counsel objects.) A. Since 1903. The Court: We have nothing to do with anything but the two feet and six inches of lot 7 in block 3034, and again announce that the plaintiff will have to go back to the government for title. Mr. Von Reppert: Since you rule that I have to go back to the government for the title, I have no further evidence to offer, and ask to continue the case until the next term of court, at plaintiff's cost. Defendants' counsel objects, and prays the court to give the following instruction: The court instructs the jury that your verdict must be for the defendants." The court gave, over the objection of plaintiff, the instruction so asked, to which plaintiff excepted. Thereupon the plaintiff took a nonsuit, with leave, upon which judgment was entered for defendants, and plaintiff excepted, and, after an unsuccessful motion to set the same aside, has brought the case here by appeal. The grounds stated in the motion are as follows: "(1) The court erred in excluding proper, legal, competent, relevant, and material evidence offered by the plaintiff. (2) The court erred in giving the instruction requested by the defendants, whereby the court peremptorily instructed the jury that its verdict must be for the defendants."

Kurt Von Reppert and Henry Higginbotham, for appellant. Paul Dillon and Daniel Dillon, for respondents.

BROWN, C. (after stating the facts as above).

At the trial the plaintiff submitted to a nonsuit because the court, at the close of his evidence, instructed the jury that their verdict must be for the defendants. The plaintiff saved his exception to the giving of this instruction, and in due time filed his motion to set aside the nonsuit and grant him a new trial, which was overruled by the court. To this ruling the plaintiff again saved his exception. The law is well settled in this state that a plaintiff may, when the court at the trial makes a ruling which absolutely precludes his recovery, abandon the prosecution of his case to a final verdict against him, submit to a judgment of nonsuit, and upon the refusal of the court to set it aside upon timely motion, appeal, and bring up for review such errors as have been committed in the trial. By this salutary rule the plaintiff is placed in a position to appeal from what he considers the erroneous rulings of the trial court, without subjecting himself to the conclusive incidents of a judgment upon a verdict.

In this case there can be no doubt of the conclusive effect of the action of the court in giving the peremptory instruction, so that all questions which arose upon the trial and have been properly saved and presented to this court for review are now before us. The only suggestion of error other than in giving the instruction quoted is found in remarks made by the court during the introduction of the plaintiff's evidence. He had offered a deed of the land in controversy to one Weiss, to which the defendants' counsel objected, because it failed to show any title in the grantor (a common failure in such instruments, which are...