Lamme v. Buse

• Decision Date: 31 October 1879
• Citation: 70 Mo. 463
• Parties: LAMME v. BUSE et al., Appellants.
• Court: Missouri Supreme Court

70 Mo. 463

LAMME

v.BUSE et al., Appellants.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Franklin Circuit Court.--HON. A. J. SEAY, Judge.

REVERSED.

A. H. Bolte and J. Halligan for appellants.

NORTON, J.

The plaintiff, Lamme, lessee of John C. Bryan, on the 7th day of April, 1876, filed his complaint of unlawful detainer against the defendants Buse and Bollmann, before one Frazee, a justice of the peace, from whom the case went up, by certiorari, to the Franklin circuit court. In his complaint plaintiff alleged that “on the 1st day of January, 1876, he was in the peaceable and lawful possession of the following described real estate and premises, situate in the county of Franklin, and State of Missouri, to-wit: The northeast corner of survey No. 1922; that afterwards, to-wit: On or about the 2nd day of April, 1876, the said defendants, unlawfully and without leave, entered upon,” &c. A notice requiring said defendants to deliver to plaintiff the possession of the “northeast corner of survey No. 2,922, and all land in said survey in possession of defendants,” was, on the 7th of April, 1876, served upon said defendants. Defendants, at the May term of said circuit court, filed their plea to said complaint, denying that they, or either of them, were guilty of unlawfully entering upon and detaining the northeast corner of survey 1,922 or any part thereof. The cause was tried at the May term, 1876, of said court, and plaintiff obtained judgment, from which defendants have appealed.

The evidence on the part of the plaintiff tended to show that in January, 1876, he was in possession of a part of survey No. 1,922, and that while in possession defendants entered upon a portion of said premises, ousted plaintiff, built and occupied a cabin, and retained possession of about thirty acres adjoining said cabin. The evidence on the part of defendants tended to show that the lands and premises actually entered upon and held in possession by Buse and Bollmann were not within the lines of survey 1,922, nor upon any part of said survey, nor upon any accretion to said survey; but that the land and premises upon which defendants had entered and upon which they had erected a cabin, and of which they held possession as owners, was upon, within the boundary of and a part of Island No. 73, in the Missouri river, and the accretion thereto; that said land and premises, so entered upon and retained, was not the land and premises set forth and described in plaintiff's notice and complaint, nor was it any part thereof. At the instance of plaintiff and against the objection of defendants, the court gave the following instructions:

1. If the plaintiff, at and before the day named in the complaint, was in the peaceable possession of certain lands held and claimed by him as northeast part of survey No. 1,922, and defendants afterwards entered thereupon without leave of plaintiff, and still detain the possession thereof from plaintiff after demand made in...