More v. Perry

• Decision Date: 31 October 1875
• Citation: 61 Mo. 174
• Parties: N. W. MORE, Appellant, v. GREER PERRY, Respondent.
• Court: Missouri Supreme Court

61 Mo. 174

N. W. MORE, Appellant,

v.GREER PERRY, Respondent.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Jasper Common Pleas Court.

Geo. T. White, for Appellant.

Lay & Belch, with John M. Tyree, for Respondent, cited Cochrane vs. Whitesides, 34 Mo., 417.

WAGNER, Judge, delivered the opinion of the court.

This was an action commenced under the provisions of the statute, for trespass, in cutting down and carrying away timber on certain lands described in the petition. The petition averred ownership in the plaintiff. The answer admitted the trespass, but denied that the land or timber belonged to the plaintiff, and alleged that the same was the property of the defendant. Both parties introduced testimony to show title in themselves, and the defendant's evidence tended to prove that he was in the actual possession. The court gave one instruction for the plaintiff and one for the defendant, and they both embodied essentially the same principle, namely, that if it was found from the evidence that at the time the alleged trespass was committed, the defendant, by himself or his tenant, was in the actual possession of the premises, claiming the same adversely to the plaintiff, then the verdict should be for the defendant. This was the single issue upon which the case was submitted, and the jury therefore found that the defendant held adversely, and that he was in the actual possession.

Such being the case, it was immaterial which party had the better title, as trespass was not the appropriate remedy. This precise question was decided in this court in the case of Cochrane vs. Whitesides (34 Mo., 417) where it was held that an action of trespass qu. cl. fr. can only be maintained where the plaintiff is in the actual or constructive possession of the land upon which the trespass is committed. If the defendant be in the actual possession, the remedy is by ejectment, in which action plaintiff may recover damages for the waste and injury, as also the rents and profits. This has long been the well settled law. The possession of the plaintiff may be either actual or constructive. And it is constructive when the property is in the actual custody and occupation of no one, but rightfully belongs to the plaintiff; as in such cases the right of property draws with it the possession. The right or title to property may, and often does, come in controversy in actions of trespass, yet the gist of the action is the injury done to the plaintiff's possession.

The...