Miller v. Tillmann
| Decision Date | 31 October 1875 |
| Citation | 61 Mo. 316 |
| Parties | P. F. MILLER, Defendant in Error, v. ANTON TILLMANN, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to Osage County Circuit Court.
Lay & Belch, for Plaintiff in Error.
Ewing & Smith, for defendant in Error.
This was an action of forcible entry and detainer, originally instituted before a justice of the peace, and removed thence by certiorari to the circuit court. At the trial there was a verdict and judgment for the plaintiff, and the defendant has prosecuted his writ of error. For the plaintiff there was evidence tending to show that he took possession of the land in 1848, and exercised acts of ownership over it, and sold timber off of it; that he had an agent who resided near to and adjoining it, and that he permitted him to cultivate a small portion of the land and take wood off it, in consideration that he would take care of it and keep trespassers away; that he never gave the defendant any permission whatever to enter upon the land.
The defendant, to maintain the issue on his side, introduced one Henry Schnitzler, who testified that he was in possession of the land in the fall of 1867, doing some clearing and making rails upon it; that he left the land between the years of 1867 and 1868, and sold his claim to the defendant, who went into possession in the fall of 1868.
There were two other witnesses who substantially corroborated the above testimony.
At the instance of the plaintiff the court gave eight instructions on his behalf, and it also gave six instructions for the defendant, and refused one. It is unnecessary to enter upon any critical analysis of plaintiff's instructions, as they embody propositions of law which have repeatedly received the sanction of this court. They are directed mainly to the facts which are necessary to constitute possession, and follow the numerous cases which have been decided on the subject. The defendant's instructions carry out essentially the same views, and are in harmony with those given on the other side. The first one declares that possession means the actual occupancy of land, and in this case the jury must believe from the evidence that Miller was in the actual possession; but it is not necessary that he should be on the land all the time, but he must keep up such actual possession by acts of possession showing that he does not intend to abandon the possession. The third instruction told the jury that they must believe from the evidence that Miller had the possession at the time Tillman entered into possession, and in the absence of such proof they should find for the defendant. And by the fourth instruction the jury were told, that neither the title to the property in...
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Brown v. McCormick
...evidences of lawful possession. McCartney v. Alderson, 45 Mo. 35; Bartlett v. Draper, 23 Mo. 407; Miller v. Northup, 49 Mo. 397; Miller v. Tillman, 61 Mo. 316. The McCormicks are precluded and estopped now, to either claim the land, or that they were in possession. Bunce v. Beck, 46 Mo. 327......
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Robertson v. Wabash, St. Louis & Pacific Ry. Co.
...plaintiff's first and second instructions, and fairly presented the case. Wilson v. K. C., St. Jo. & C. B. Ry. Co., 60 Mo. 184; Miller v. Tillman, 61 Mo. 316. MARTIN, C. This is a common law action for negligently and carelessly running over and killing a cow belonging to plaintiff, valued ......
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Kaulleen v. Tillman
...Mo. 407; Blount v. Winright, 7 Mo. 50; Hatfield v. Wallace, 7 Mo. 112; Biddle v. Ramsay, 52 Mo. 153; Wood v. Dalton, 26 Mo. 581; Miller v. Tillman, 61 Mo. 316; Beeler v. Cardwell, 29 Mo. 72. The so-called lease did not work an actual change of possession in favor of Miller. Wood v. Dalton, ......
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Fulkerson v. Mitchell
...Cockrell for respondents. The court properly refused the third instruction asked by plaintiffs, it was unnecessarily cumulative. Miller v. Tilman, 61 Mo. 316; Martin v. Smylee, 55 Mo. 577; State v. Miller, 67 Mo. 604. It was also erroneous in being limited to a partial view of the facts and......