Milem v. Freeman

• Decision Date: 09 March 1909
• Citation: 117 S.W. 644,136 Mo. App. 106
• Parties: MILEM v. FREEMAN.
• Court: Missouri Court of Appeals

117 S.W. 644

136 Mo. App. 106

MILEM v. FREEMAN.

St. Louis Court of Appeals. Missouri.

March 9, 1909.

1. APPEAL AND ERROR (§ 597)—TRANSCRIPT —DATE OF FILING PETITION.

The date of filing the petition, where material, should appear in the transcript.

2. FORCIBLE ENTRY AND DETAINER (§ 9) — POSSESSION.

The mere surveying of land, without any acts indicating it was made, or without showing that it is brought to the attention of one in possession, is not possession, interrupting that of the one in possession, so as to authorize an action of forcible entry and detainer against him.

3. FORCIBLE ENTRY AND DETAINER (§ 29) — POSSESSION—EVIDENCE.

Proof of possession by H., interrupting that of defendant in forcible entry and detainer, so as to authorize the action, is not made by mere testimony that H. was recognized and considered as the owner and considered to be in possession.

4. FORCIBLE ENTRY AND DETAINER (§ 29) — POSSESSION—EVIDENCE.

Evidence in forcible entry and detainer that defendant's possession for three years before commencement of the action had been interrupted, so as to authorize the action, held insufficient to go to the jury.

5. APPEAL AND ERROR (§ 1001)—REVIEW OF VERDICT—SUFFICIENCY OF EVIDENCE.

It is the right and duty of the Court of Appeals to reverse for lack of substantial evidence, considering all of it, to sustain the verdict.

Appeal from Circuit Court, Scott County; Henry C. Riley, Judge.

Action by J. A. Milem against C. C. Freeman. Judgment for plaintiff. Defendant appeals. Reversed.

Moore & Parsons, for appellant. M. C. Gresham, for respondent.

REYNOLDS, P. J.

Action under section 3321, Rev. St. 1899 (Ann. St. 1906, p. 1880), for unlawful detainer of a strip of ground within the limits of the city of Sikeston, in Scott county. As described in the petition filed with the justice and on which the case was tried in the circuit court, the parcel is 12.75 feet along the south line of Front street, then 120.67 feet along the west line of King street to the intersection of the west line of King street with the north line of the right of way of the Iron Mountain Railway, then along the right of way .07 of a foot to the southeast corner of block 7, in Sikeston, and thence along the east line of block 7, 120 feet, to the place of beginning. This description shows practically a triangular piece; the base being 12.75 feet, one side 120.67, the other 120 feet, and the lower end, .07 of a foot, being practically a point about 7/8 of an inch. The location will be better understood by reference to part of the plat of Sikeston which is reproduced in the brief of counsel for respondent, which we have changed only by adding in the name "Front street," where we understood it to be, and have marked the piece in dispute in black. That plat, as far as necessary to explain the stiuation, is as follows:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It is described in the petition as being a part of United States survey No. 625, and it might be inferred from the description in the petition that it is not within the limits of the city of Sikeston, which gives rise to some question as to whether it is within the jurisdiction of the justice of the peace; but, as no suggestion of that kind is made, we pass that by. The description, however, placing the tract in survey No. 625 and not within the limits of Sikeston, was not an accident, but was of purpose, as we will hereafter note. The petition charges that on or about October 6, 1906, the plaintiff, respondent here, purchased this strip from Mrs. Catherine Handy, and was preparing and had arranged "to build a house on the premises," and that defendant, "on or about the ____ day of October, 1906, did wrongfully and unlawfully seize and enter into the possession of the above-described premises and incumbered a part of the same with a house and a wire fence, and continues in the possession of the same adversely to the plaintiff, after demand has been made by the plaintiff to the defendant in writing for the possession of the premises." Averring that he is entitled to the immediate possession of the above-described premises, and has been damaged by the unlawful seizure and detention in the amount of $25, plaintiff prays judgment of restitution and for damages and the value of the rents and profits of the premises. His petition was sworn to on the 4th of February and was served on the defendant the same day, so that it was undoubtedly filed with the justice on the 4th of February, 1907, although the date of filing does not appear in the transcript, which it should always do in actions where time is at all material, as it is in cases of this character. A trial before the justice resulted in a verdict for plaintiff, and defendant appealed to the circuit court. At the close of plaintiff's evidence, the defendant asked for an instruction in the nature of a demurrer to the evidence, which was overruled; defendant duly excepting. Defendant thereupon proceeded with his testimony, and plaintiff introduced testimony in rebuttal. At the conclusion of the trial, the court having given several instructions for both parties, the jury returned into court a verdict in the following form: "We, the jury, find that the plaintiff, J. A. Milem, is entitled to the possession of the strip of ground sued for." On this verdict the court entered judgment for restitution of the premises and for costs and ordered execution to issue accordingly. After unsuccessful motions for new trial and in arrest, exception being duly saved to the action of the court in overruling them, defendant prosecuted his appeal to this court, assigning here, as he did in his motion for new trial, among other grounds, that there is no substantial evidence in the case warranting the jury to return a verdict in favor of plaintiff. We have consequently read all the testimony contained in the transcript, not being satisfied to rest our action upon the abstracts furnished by counsel for the respective parties, and have reached the conclusion that there is no substantial evidence in the case warranting its submission to the jury.

The facts developed on the trial are substantially these: What is claimed to be this strip of ground in controversy lies to the east of the lots in block 7, in the city of Sikeston. In the plat above copied, it is the piece colored black, adjacent to the lots in block 7. These lots are not numbered on the plat used, so that we cannot say whether lots 2 and 3, which defendant claims to occupy, are the two south or two north lots in the block. The city of Sikeston was laid off and platted by John Sikes in 1860; Sikes then being the owner of United States survey No. 625, and the townsite being platted as within that survey. There seems to have been some change or correction of the lines of the original town when the city of Sikeston was organized, and the city authorities of the new town appear to have adopted and approved a plat of the city with its new boundaries. The plat furnished us by counsel for respondent, however, shows that the strip in controversy is within the limits of the city of Sikeston, and all the testimony in the case bounds it on the north by Front street and on the east by King's Highway (also a street in that city), and there is no suggestion that it was not within the limits of the town of Sikeston as originally platted and laid off in 1860 by John Sikes. Mrs. Sikes, now Mrs. Handy, appears to have been the owner of survey No. 625, and while it is stated in the petition that she sold this strip as being part of that tract to the plaintiff, on the 6th of October, 1906, there is no testimony whatever in the record fixing this date; the only testimony being that her son, Need Sikes, had acted for his mother in selling it to the plaintiff at some time prior to the institution of the suit, but the date of the sale not appearing anywhere. If it was on the 6th of October, 1906, as averred in the declaration, then it was just four months before the institution of this action. The question of the date of the sale and conveyance, however, or the fact of a conveyance, has no bearing on this case, any further than that plaintiff claims the benefit of the acts of Mrs. Handy, as showing her possession, and, of course, to do that he must show some privity, either as grantee, tenant, or agent, to enable him to do so. Beyond the statement that he did purchase of her and the testimony of her son that, acting for his mother, he had sold this strip to plaintiff, this is not shown.

The case technically, then, should turn on the fact of possession in plaintiff himself. As no point is made on this, however, we treat the case as if it had been in evidence that plaintiff is owner by deed from Mrs. Handy, and give him the benefit of her acts of possession if she did any. It appears from the testimony in the case that the defendant was the owner of lots 1 and 2 in this block 7. As before noted, whether 1 and 2 are the north lots or the south lots in block 7 is not shown by the testimony. It is not very material, however, to determine what is the position of the two lots he owns, as in any event what is claimed as this strip runs along all three of the lots in this block, as will be seen by the plat. These lots, as shown in the plat, have a front of 40 feet and a depth of 120 feet. The defendant claims, however, that the description in his deed, which deed is not in evidence, carries his lots across and over this strip. Of course, in an action of this kind, whether defendant has title by deed to the premises in dispute is not material; the question being one of actual occupancy or possession. It is sufficient to say that defendant claims not only that...