Keyser, Survivor of Carlisle & Keyser v. Rawlings

• Decision Date: 31 October 1855
• Citation: 22 Mo. 126
• Court: Missouri Supreme Court
• Parties: KEYSER, SURVIVOR OF CARLISLE & KEYSER, Respondent, v. RAWLINGS AND OTHERS, Appellants.

22 Mo. 126

KEYSER, SURVIVOR OF CARLISLE & KEYSER, Respondent,

v.RAWLINGS AND OTHERS, Appellants.

Supreme Court of Missouri.

October Term, 1855.

1. In an action of forcible entry and detainer, where the defence relied on is that the entry complained of was made after an abandonment of the premises by the plaintiffs; held, that evidence offered by defendants to the effect that previous to the alleged abandonment and the forcible entry complained of, the plaintiffs, then being tenants of one W. C. (claiming under whom the defendants made their entry) fraudulently attorned to one J. M., is inadmissible.

2. Where, in an action of forcible entry and detainer, one of two co-plaintiffs, who had, previous to the entry complained of, been in joint possession of the premises entered upon, dies, the survivor may recover all the damages sustained by such forcible entry and detainer.

3. Quere. Whether the estate of the deceased co-plaintiff is not entitled, in such case, to one half the sum recovered.

Appeal from St. Louis Court of Common Pleas.

This case has heretofore been in this court. The case is reported in 18 Mo. 166. This was an action of forcible entry and detainer, brought before a justice of the peace, and removed by certiorari to the Circuit Court, and afterwards by change of venue to the St. Louis Court of Common Pleas. The complaint was by Carlisle & Keyser, as plaintiffs, against D. A. Rawlings, Thomas Rawlings, Isaac H. Sturgeon and Rowland Chambers, and stated, that on the 30th August, 1849, plaintiffs were in the peaceable possession of block No. 288, of the city of St. Louis, and the same premises upon which the said Carlisle & Keyser had been carrying on a steam saw-mill, which had been burnt down a short time previous to the date aforesaid; that on said date, while the said Carlisle & Keyser were peaceably possessed of said block, the defendants, with force, entered upon and into said block and took forcible possession thereof, and ever since have and still do forcibly detain the same from said Carlisle & Keyser, and that by threats and terror they turned Carlisle & Keyser out, and forcibly detain the possession from them.

After the change of venue to the Common Pleas, the death of Carlisle was suggested, and the suit continued to be prosecuted in the name of Keyser alone.

On the trial, the plaintiff introduced evidence tending to prove that Carlisle & Keyser were partners in the brick-making and saw-milling business; that their saw-milling business was carried on by them on block No. 288, the premises in controversy; that they had been in possession of said premises for two or three years prior to the burning of the saw-mill on said block; that said mill was burned down in August, 1849; that after the fire, said Carlisle & Keyser were in possession of said block, collecting the materials and lumber not burned, and the wreck of the mill, up to the evening before the alleged forcible entry, a short time after the fire; that on the morning succeeding said entry it was found that said block had been enclosed by a fence during the night time or very early in the morning; that the fence was up the next morning after Carlisle & Keyser quit work the evening before, and that Keyser went up to the fence, shook it, and demanded possession; that D. A. Rawlings, T. Rawlings and Rowland Chambers, defendants in this suit, were inside of the fence, together with other persons, with guns and pistols; that the said defendants had employed the persons who built a shanty upon said premises, and put up a fence around the same, and refused to vacate the same when possession was demanded, as above stated by the plaintiff, Keyser; that upon the said premises, when taken possession of, was the wreck of the mill and engines, which were afterwards hauled away.

Defendants, on cross-examination of one of the plaintiffs' witnesses, asked the following questions, to-wit: “Were Childs and Emerson assignees of the tenancy of Hull, Allen & Childs, and tenants of Wm. Chambers? Did they all sell to Carlisle & Keyser their interest in the premises as tenants of William Chambers in 1847? Did Carlisle & Keyser fraudulently attorn to John Maguire after becoming tenants of William Chambers in the premises in question?” The plaintiffs objected to said questions, and the court refused to permit any of them to be put to the witness. Defendants duly excepted.

Defendants also introduced evidence tending to prove that the fence was put up on the 30th of August, that Carlisle & Keyser had abandoned the premises after the burning of the sawmill and before the entry was made and the fence put up, and that at the time said fence was put up no one was in possession of the ground. Defendants also offered to prove, by reading the petition in a suit brought by John Maguire against Isaac H. Sturgeon, that said Maguire, in that suit, claimed to be the owner of the wreck of the said saw-mill after it was burnea down. The court excluded this evidence, and defendants duly excepted. Defendants also offered to prove that the premises in question were, in 1826, and from that time until the first day of May, 1848, in the possession of William Chambers; that in June, 1845, Hall and Allen and Childs went into the saw-mill in question and put engines into and occupied the premises as tenants of Wm. Chambers; that they continued as tenants of the premises until the spring of 1846, when Joshua J. Childs and Primus Emerson succeeded Hall, Allen and Emerson, as tenants of said property, under Wm. Chambers, and are the owners of engines in the saw-mill; that they fraudulently attempted to attorn to John Maguire, as their landlord, in the spring of 1847, about the 9th day of May; that they continued to recognize Wm. Chambers as their landlord up to the time that Carlisle & Keyser went into possession under John Maguire; that Carlisle & Keyser knew that Childs and Emerson were tenants of William Chambers, and that they had attempted to attorn to John Maguire; that Childs and Emerson had made a private sale of the engines and fixtures of the saw-mill in question to John Maguire, and that John Maguire put Carlisle & Keyser into possession of the mill in the place of Childs and Emerson; that Carlisle & Keyser were not owners of the engines and fixtures of the mill; and that John Maguire was, at the time of the fire, the owner of the engines, boilers and fixtures in said mill. The court, on objection made by plaintiff, refused to permit such proof to be given; and defendants duly excepted.

The court gave the following instructions, asked by plaintiffs: “1. If the jury believe from the evidence, that Carlisle & Keyser were in possession of the premises described in the complaint prior to and up to the time of the burning of the mill spoken of by the witnesses, and that Carlisle & Keyser continued in possession of said premises until the fence spoken of by the witnesses was put up; and if the jury shall also believe from the evidence that the defendants, Daniel A. Rawlings, Thos. Rawlings and Rowland Chambers, or either of them, after the burning of said mill, took possession of said premises and employed or took upon said premises a large number of men, with guns or other deadly weapons for the purpose of keeping possession of said premises, and that the men so taken on said premises, by threats or menaces of a violent character towards Keyser, or towards any of his agents and servants employed to labor on said premises, frightened said Carlisle & Keyser or their agents or servants out of possession, and detained and held the same; if these facts appear from the evidence to the satisfaction of the jury, they should find for the plaintiff, unless the defendants have shown in evidence to the satisfaction of the jury that Carlisle & Keyser had abandoned the possession of said premises before the defendants took possession of the same. 2. If, prior to the commencement of this suit, Carlisle & Keyser were in the peaceable possession of the premises in dispute, by having thereon their property and servants and employés, engaged in any business of said C. & K., up to the close of the day, and that said C. & K., their servants and employés, left the premises for the night, intending to return thereto in the morning to pursue such business of said C. & K. as they had at the said premises, but that in the meantime and before the return of C. & K., their agents and employés, the next morning, defendants, or either of them, with a large force of men, entered upon said premises and enclosed the same with a fence in the absence of said C. & K., their servants and employés, said defendants, intending by force and by the display of deadly weapons to take and...