Morgner v. Biggs

• Decision Date: 31 March 1870
• Parties: ALBIN MORGNER, Appellant, v. PETTIS BIGGS, Respondent.
• Court: Missouri Supreme Court

46 Mo. 65

ALBIN MORGNER, Appellant,

v.PETTIS BIGGS, Respondent.

Supreme Court of Missouri.

March Term, 1870.

Appeal from Sixth District Court.

E. A. Lewis, for appellant.

Lackland and King, for respondent.

This being an action of replevin for the recovery of specific personal property, the defendant is not bound to show a perfect title in himself in order to defeat the action, but the plaintiff is bound to show a perfect title in himself in order to recover. Replevin will not lie in this case. The action will not lie for crops cut and removed by a disseizor. (Hill. Rem. Torts, 7, § 11; De Mot v. Hugermain, 8 Cow. 220; Powell v. Smith, 2 Watts, 126.)

CURRIER, Judge, delivered the opinion of the court.

This is a replevin suit. The petition avers that the plaintiff is the owner, and entitled to the possession of two hundred bushels of wheat, and that the defendant wrongfully detains it from him. The answer puts the averments in issue, and then alleges title in the defendant, tracing it from one Foster, who is alleged to have been the lessee and tenant of the plaintiff, and to have grown the wheat upon the premises.

Under the pleadings, the onus of proof was upon the plaintiff to establish his title to the wheat, and to show the wrongful detention of it by the defendant; and it was competent for the defendant to rebut and disprove the case, as made by the plaintiff, by showing title in himself from Foster, although Foster may have been the mere licensee, and not the lessee, of the plaintiff. (2 Greenl. Ev., §§ 561-2; 38 Mo. 160.) The case shows that the controversy turned upon the question of title to the wheat. It was claimed by both parties--by the plaintiff in virtue of his ownership of the soil on which the wheat was grown, and by the defendant through his purchase of it from Foster's estate. The plaintiff gave evidence of his title to the land whereon the wheat was grown, as tending to show his title to the wheat; and the defendant gave evidence tending to show that Foster was in possession of the premises for some two years, covering the period of the growing of the wheat, as the lessee or licensee of the plaintiff, and that the wheat crop was put in by him as such lessee or licensee, with the plaintiff's implied assent and approval; that Foster subsequently died, leaving his widow in possession of the premises; that his administratrix assumed control of the wheat, and sold and conveyed it to the defendant. The evidence, however, failed to show the existence of the lease set out in the answer.

The questions presented for consideration here arise out of the action of the court in giving and refusing instructions. The answer alleged the existence of a lease from ...