Loring v. Harmon

• Decision Date: 31 October 1884
• Citation: 84 Mo. 123
• Parties: LORING v. HARMON, Plaintiff in Error.
• Court: Missouri Supreme Court

84 Mo. 123

LORING

v.HARMON, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1884.

Error to De Kalb Circuit Court.--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

Wm. H. Riggs, and Ramey & Brown for plaintiff in error.

(1) The only question in this case is whether or not there is anything in the record showing that Harmon is estopped from disputing the title of Loring to the land sued for. At the time Loring made his claim to the land Harmon was tenant of Simons. Loring was a stranger, not having taken any title by his sheriff's deed The attempt of Harmon to attorn to him was, therefore, void. R. S. 1879, sec. 3080. (2) Harmon's possession was the possession of Simons, and he was bound to keep possession for his landlord, and he could not at the same time be subject to two separate landlords. Gunn v. Sinclair, 52 Mo. 327, 332. If he was still the tenant of Simons, and holding possession for Simons, he could not at the same time be the tenant of Loring and hold the possession for him. If, instead of attorning to Loring, Harmon had turned over to him the manual possession, both the act of Harmon and the entry of Loring would have been unlawful. McCartney v. Auer, 52 Mo. 305, 398. And it is evident that the court will not in this action put the parties in a position in which they would not be permitted to put themselves. (3) The pretended attornment was not only void because it was made so by the express provisions of the statute, but because it was procured by misrepresentation. Higgins v. Turner, 61 Mo. 249; Schultz v. Arnot, 33 Mo. 172.

Samuel G. Loring pro se.

(1) It is a well settled rule of this court that it will not interfere with the verdict of a jury on the ground that the finding is against the weight of the evidence, if there is any evidence before them tending to support their finding. Russell v. Burkstresser, 77 Mo. 427; Hamilton v. Berry, 74 Mo. 178; Rea v. Ferguson, 72 Mo. 225. The same rule applies to trial courts sitting as a jury. Beck v. Pollard, 55 Mo. 27. The proposition is: Was there, as a question of law, any evidence before the court tending to support the finding of the court? There was no question but what the defendant was in possession at the commencement of this suit, and the only question in this case is whether Harmon is in a position to contest the plaintiff's title. (2) There is no dispute but that the sheriff of DeKalb county had executed to plaintiff a deed purporting to convey all the title of Simons in the land in suit, and he claimed to be the owner before Harmon attorned to him. The plaintiff was not a stranger as to preclude the attornment. (3) There is no pretense that the attornment by Harmon to plaintiff was obtained by any false representation. (4) Harmon having recognized plaintiff as his landlord is precluded from showing that plaintiff had no title to the land at the time of the attornment. Taylor on Landlord and Tenant (7th Ed.) secs. 705-6. (5) The deeds from Simons to Klein and from Klein to defendant were not properly in evidence. Higgins v. Turner, 61 Mo. 250.

EWING, C.

This is an action in the nature of ejectment to recover possession of the northeast quarter of the southwest quarter of section two, township fifty-nine, range thirty, in DeKalb county. The petition was in the usual form, and the answer a general denial. The plaintiff offered in evidence a sheriff's deed to himself, from the sheriff of DeKalb county under a judgment in favor of Aultman, Miller & Co., and against Whitney W. Simons. This deed purported to convey the interest of Simons in the land in controversy. It was objected to by the defendant “because it showed on its face that it was founded on a void execution. The objection was sustained. Plaintiff then stated that he offered it for the sole purpose of showing the date, origin, and extent of his claim, and not for the purpose of showing title in himself. It was then admitted for the purposes stated and no other.”

Plaintiff, then, being sworn on his own behalf, stated that “at the time I purchased the land at sheriff's sale, defendant was in possession as the tenant of Whitney W. Simons. Shortly afterwards, I went to defendant and told him I had purchased the land and was then the owner, and defendant attorned to me and became my tenant. Afterward, in 1875, I sold the land to defendant for $260, and executed to him a bond for a general warranty deed when the purchase money should be paid. After it was due in the fall of 1878, defendant told me that he could not pay for the land, and asked me to permit him to stay in the house on it until spring. I told him he could, provided I did not want it, if I did he should move out, to which he agreed. He gave me up my bond for a deed and I delivered to him the purchase price. He paid me but five dollars on the land. I think likely he told me about the time the purchase money became due, that he could not pay for the land without borrowing money on it, which he would do, and I told him he could not borrow the money on the land because Klein's deed was a shadow on the land. I may have told him at the time, I would law or buy Klein out of it. On October 18, 1878, defendant claimed to own the land, and disclaimed to hold the title under me.”

The defendant offered in evidence a warranty deed from Whitney W. Simons to Kephart D. Klein, dated March 2, 1874, filed for record March 31, 1874; and a quit-claim deed from Klein to defendant dated August 30, 1878. This was all the evidence in the case. There was then judgment for the plaintiff, and defendant filed his motion for a new trial, and as cause alleged that “there is no evidence in the case tending to support the judgment and finding of the court.”

This, then, was the only question in the case: was there any evidence tending to support the judgment? The evidence failed to show title in plaintif...