Magwire v. LaBeaume
| Decision Date | 06 May 1879 |
| Citation | 7 Mo.App. 179 |
| Parties | JOHN MAGWIRE, Respondent, v. LOUIS A. LABEAUME, Appellant. |
| Court | Missouri Court of Appeals |
1. The judgment in an action to divest title and for possession, though conclusive against the tenants in possession who were made parties, is not conclusive against the landlord, who was not a party, though he employed counsel to defend the suit; and in an action against him for mesne profits, it is competent for him to show that before the action to divest title was brought the plaintiff had parted with his interest in a portion of the realty.
2. In an action for mesne profits, if the defendant, by matter of evidence or construction of law, has become a trustee of the plaintiff, he may plead lapse of time as a bar to the action.
3. A jury is not to arrive at the rental value of unimproved real estate by calculating interest upon the value of the fee; but where an expert gives such a process of calculation as the reason for his opinion as to the rental value of the property, the testimony may be allowed to go to the jury for what it is worth.
APPEAL from St. Louis Circuit Court.
Reversed and remanded.
J. R. SHEPLEY, for appellant: In any event, the recovery must be limited to five years prior to the commencement of this action.-- Morgan v. Varick, 8 Wend. 587; Johnson v. Smith's Administrator, 27 Mo. 591; Keeton v. Keeton's Administrator, 20 Mo. 538, 539, 541. The deeds offered in cvidence by defendant, showing that Magwire, at the commencement of the original suit and the commencement of this suit, owned less than two-thirds of lot 49, sued for, should have been admitted in evidence.-- Chirac v. Reinicker, 2 Pet. 623. The court should have excluded the evidence of Betts and of Belt as to the annual value of the lot, based, as it was, wholly upon a method of arriving at such value which the Supreme Court have held to be unwarranted and illegal.-- Thomas v. Mallinckrodt, 43 Mo. 62.
J. M. & C. H. KRUM, for respondent: An action of trespass to recover mesne profits is one of the incidents of a suit to recover possession of land. Under the statute of Missouri concerning ejectment, the plaintiff in his petition and suit for possession may unite his claim, by way of damages, for the rents and profits of the locus in quo. Nevertheless, the original entry of the defendant is still the subject of an action for trespass, and so are mesne profits where the plaintiff obtains possession without suit, or without prosecuting suit to judgment.-- Leland v. Tousey, 6 Hill, 320; Jackson v. Wood, 24 Wend. 443; Adams on Eject., side-p. 333; 7 Rob. Pr. 274; Tyler on Eject. 837, 838. Any person who is in possession of land by his tenants, and who by his acts, commands, or cooperation aids in the expulsion of the plaintiff, and in withholding possession from him, is deemed in law a trespasser.--1 Greenl. on Ev., sect. 524; Wheelock v. Warschauer, 34 Cal. 265; Castle v. Noyes, 14 N. Y. 329. “Trespass for mesne profits will lie against one who was in fact the landlord in possession by his tenants, and who actually defended the ejectment, though he did not appear on the record as defendant.”-- Chirac v. Reinecker, 11 Wheat. 280.
This is an action to recover damages in the nature of mesne profits for a lot of ground in the city of St. Louis, portion of a large tract to which the plaintiff established title, and of which he recovered possession in the suit of Magwire v. Tyler et al., reported in 47 Mo. and in 17 Wall.
That action was a proceeding to divest title out of the defendants to that suit, and to vest it in Magwire, and for possession. The defendants in that action were about forty in number. Labeaume, the defendant in this suit, was not a party defendant in Magwire v. Tyler. It appears from the petition in that case that the defendants there were treated as tenants in common, each of them claiming an interest in and by virtue of some deed from one Louis Labeaume (not the defendant in the present action), and that the prayer was that all the right, title, or interest claimed by them and each of them under Labeaume be divested out of them and vested in the plaintiff. The defendants set up several equitable defences in common. They set up no separate defences. Henry S. and James Parker and Catherine Shaffey, defendants in Magwire v. Tyler, were tenants of Labeaume, the defendant here, and Labeaume employed counsel to defend that suit. There is no prayer in the petition in Magwire v. Tyler that the title of Labeaume in the lot which the Parkers leased from him, or in any portion of the tract in controversy in that action, be divested out of Labeaume. Nor is there anything in the petition from which Labeaume could gather that its scope was to divest title out of Labeaume and vest it in Magwire. The petition informed him that the plaintiff was seeking to divest the interest of Labeaume's tenants, and to vest the interest in the plaintiff.
The decree of the Supreme Court of the United States divested out of the defendants in Magwire v. Tyler all their interest in the land, and vested it in the plaintiff, and was also for possession. And though the proceeding was in equity, and the legal title found to be in Magwire, the Supreme Court of the United States held that whether he had a remedy at law, and whether equity had jurisdiction of the case, were questions that could not be made in the Supreme Court, not having been raised in the court of original jurisdiction. There was no decree as to rents and profits.
On the trial of the case at bar, the plaintiff proved that the city lot in question was included in the large tract recovered in Magwire v. Tyler; that Labeaume's tenants, Shaffey and the Parkers, occupied between 1862 and 1873; that he was put in possession by the United States marshal. He introduced evidence as to the rental value of the lot. Against the objection of the defendant, the plaintiff introduced evidence tending to show that the Supreme...
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