Phillips v. Phillips

• Decision Date: 07 December 1891
• Citation: 17 S.W. 974,107 Mo. 360
• Parties: PHILLIPS v. PHILLIPS.
• Court: Missouri Supreme Court

17 S.W. 974

107 Mo. 360

PHILLIPS v. PHILLIPS.

Supreme Court of Missouri, Division No. 1.

December 7, 1891.

EJECTMENT — POSSESSION OF DEFENDANT — DAMAGES.

1. In ejectment it appeared that defendant used the land for pasture and farming purposes, that a dwelling-house thereon was occupied by his housekeeper and cook, and that he had rented a portion of the land to a third person. Held, that the action was properly brought against him, and that it was not necessary to show actual occupancy.

2. On trial in ejectment 18 months after ouster there was evidence that from 100 to 150 acres of the land was in cultivation, worth $3 per acre per annum. Held, that on recovery by plaintiff an assessment of his damages at $540 was not excessive.

Appeal from circuit court, New Madrid county; H. C. O'BRYAN, Judge.

Action of ejectment by Amos R. Phillips against Murray Phillips. Defendant appeals from a judgment for plaintiff. Affirmed.

Wm. Carter, M. Arnold, and Silver & Brown, for appellant. R. B. Oliver, for respondent.

BLACK, J.

This is an action of ejectment for several hundred acres of land. The court, sitting as a jury, gave judgment for plaintiff, and defendant appealed. Shapley Phillips, who was the father of the defendant and the grandfather of the plaintiff, died, leaving a large landed estate, which was partitioned in 1870. The plaintiff acquired the land sued for in severalty by that proceeding. The defendant was the guardian of the plaintiff, and as such had charge of the land in suit down to March 25, 1887, at which date the plaintiff became of age. The plaintiff then demanded possession, which demand was refused, and hence this suit. The defendant set up a claim on the trial that he was not in possession of the land when this action was commenced. There was, at that date, a dwelling-house on the property, occupied by Mrs. Barker, with four or five acres and outbuildings attached. Defendant then resided eight or ten miles distant; but the evidence for the plaintiff tends to show that the defendant used the plaintiff's land for pasture and farming purposes in connection with other land set off to him by the decree in the partition suit, and that Mrs. Barker was simply the cook or housekeeper for defendant. The defendant, who was the only witness in his own behalf, testified that he was not in possession at the institution of the suit; that the property was then, and for seven or eight years had been, occupied by Mrs. Barker. On his cross-examination he admitted that Mrs. Barker was simply a housekeeper, doing the cooking for...