Kunze v. Evans

• Decision Date: 28 May 1895
• Citation: 31 S.W. 114,129 Mo. 1
• Parties: Kunze v. Evans et al., Appellants
• Court: Missouri Supreme Court

31 S.W. 114

129 Mo. 1

Kunze v. Evans et al., Appellants

Supreme Court of Missouri, First Division

May 28, 1895

Appeal from Cass Circuit Court. -- Hon. W. W. Wood, Judge.

Affirmed.

J. S Wooldridge, H. Clay Daniel and Noah M. Givan for appellants.

(1) A judgment in ejectment against one not in possession is erroneous if not void. R. S. 1889, sec. 4633; Insurance Co. v. Cummings, 13 Mo.App. 76; S. C., 90 Mo. 267; Shaw v. Tracy, 95 Mo. 531; LaRivierie v Tracy, 97 Mo. 84; Tyler on Ejectment, p. 472. (2) At the time this suit was instituted, defendant Evans was not in possession of the property in question, either by himself or by tenant, and was not, at the time of the rendition of judgment, in possession of it; hence judgment, for that reason, with others, was improperly and erroneously rendered against him. Authorities supra. (3) Judgment was erroneously rendered against both defendants for the possession of the premises after their possession had ceased, and also for monthly rents and profits from the date of the judgment. (4) The court erred in refusing the instruction or declaration of law numbered 3 asked by the defendant. Crispen v Hanavan, 50 Mo. 536; Land Co. v. Hays, 105 Mo. 143; Hunnicutt v. Peyton, 102 U.S. 333; Kunze v. Evans, 107 Mo. 487. (5) The action of the court in giving plaintiff possession of a strip of ground eight, one tenth inches wide, by thirty feet long, described in the judgment, and for damages and monthly rent, is unsupported by any substantial evidence, and for that reason alone, among others, should be reversed. State v. Chouteau, 91 Mo. 490; Klosterman v. Kage, 39 Mo. 60.

Burney & Burney with William L. Jarrott for respondent.

(1) At the commencement of this action defendants were in possession of the land sued for, or at least were in possession of all the ground for which plaintiff recovered judgment, and plaintiff established a good and perfect title to said real estate. This was all that was necessary to entitle plaintiff to recover. R. S. 1889, sec. 4633. (2) The court found that defendant was in actual possession of the ground at the time of the beginning of the suit. Actual personal presence of defendants on the land at the time of the institution of the suit is not necessary to the maintenance of ejectment, but any subjection of the property to their will and dominion is sufficient. Bell v. Foxen, 14 Sawy. 799. "It is very true that an action in ejectment must be brought against the person in possession, but occupancy of, or residence upon, the property is not a necessary element of possession." Phillips v. Phillips, 107 Mo. 360. (3) The court did not err in refusing instruction 3 asked by defendant. It was not supported by any testimony and was in direct conflict with the decision of this court when the case was here on a former appeal. Kunze v. Evans, 107 Mo. 487.

OPINION

Brace, P. J.

This is an action in ejectment commenced July 2, 1887, by the plaintiff, L. O. Kunze, against T. D. Evans and S. J. Beattie, in the circuit court of Cass county, to recover a narrow strip of ground three feet by thirty feet, six inches, in lot 4, block 2 in the city of Harrisonville, covered by an ice house erected by said defendants in the year 1882. Judgment for plaintiff, and the defendant Evans appeals. The case has been here before, and is reported in 107 Mo. 487, 18 S.W. 36, where a full statement may be found.

The decision of the case then, as now, turned upon the true location of the line between the lot of the plaintiff and the lot belonging to the wife of the defendant Evans. Both parties claimed according to the lines of their respective deeds, until this controversy arose. On the former appeal, it...