Powell v. Davis

• Decision Date: 31 October 1873
• Citation: 54 Mo. 315
• Parties: FRANCIS B. POWELL, et al., Defendants in Error, v. ANDREW J. DAVIS, et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

54 Mo. 315

FRANCIS B. POWELL, et al., Defendants in Error,

v.ANDREW J. DAVIS, et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1873.

Error to Adair Circuit Court.

James Carr, for Plaintiffs in Error.

I. Cutting timber on land, which is the only possession plaintiffs had, is not such possession as to authorize the parties cutting to maintain an action of forcible entry and detainer. (Bell vs. Cowan, 34 Mo., 251; Rouse vs. Dean, 9 Id., 301.)

II. As the plaintiffs did not enter under any color of title, they were not entitled to recover any more of said land than what they had actual possession of. (Harris vs. Turner, 46 Mo., 438; Prewitt vs. Burnett, Id., 372.)

J. L. Berry and B. G. Barrow, for Defendants in Error, relied on Miller vs. Northup, 49 Mo., 397, and cases cited; McCartney's adm'r vs. Alderson, 45 Mo., 35 and cases cited; Bartlett vs. Draper, 23 Mo., 407; Hoffstetter vs. Blattner, 8 Mo., 276.WAGNER, Judge, delivered the opinion of the court.

This was an action of forcible entry and detainer brought to recover the possession of a tract of land lying in Macon county. The case was transferred by change of venue to Adair county, and on the trial there was a verdict and judgment for plaintiffs.

Both parties claimed title to the premises, the plaintiffs under Macon county, and the defendants under the Han. & St. Joe. R. R. Co. But the only question now here for determination is, whether the plaintiffs were in such peaceable possession of the land as would enable them to maintain their action against the defendants for the subsequent ouster. It seems the land in controversy was a forty acre tract, mostly timbered, and situated some distance from plaintiff's other land.

The testimony tended to show, that plaintiffs cut wood and timber and made rails off of the land, and that they had got a man to clear up some five or six acres, and had agreed to let him have the part so cleared for a year to raise a crop on; that, while he was engaged in clearing the land, the defendants one day in his absence came upon the land, and with plank already fixed for the purpose put up a small shanty in one day, placed a tenant therein and took possession, and the next day, when plaintiffs' tenant returned to his work, he was ordered off.

As there was evidence tending to prove the issue raised by the plaintiffs, it will only be necessary to see whether the court properly declared the law.

For the plaintiffs, the court instructed the jury:

1st. That if they believed from the evidence, that the plaintiffs were at any time, within three years next before the commencing of the action, in the peaceable possession of the land in controversy, and while so possessed thereof, and before this action was commenced, the defendants without the consent of plaintiffs and against their will entered into and took possession, then they should find for plaintiffs.

2d. That, in order to constitute such possession in plaintiffs, it was not necessary that they should reside on the land or stay there or keep agents or servants there, but that any act done by them upon the premises indicating an intention to hold the possession thereof in themselves was sufficient; and 3rd, if the jury believed from the evidence, that plaintiffs in 1871 went upon the land in controversy with the intention of holding the same, and of clearing and fitting any part of it for cultivation, and cut and corded wood thereon, and had rails made and posts cut on the same for the purposes of fencing said land, or any part of it, for cultivation, and in the month of May, 1871, and prior to the 9th day of the month, were proceeding to have any portion of said land cleared up to have the same cultivated, then the jury were authorized to infer the actual possession of plaintiffs of the land at the time referred to, and if they should so find, and further believe from the evidence, that the defendants about the 9th day of May, 1871, entered into the possession of the said land, and withheld it from plaintiffs, and against plaintiffs' will, then they should find defendants guilty of forcible entry and detainer as charged, etc.

For the defendant the court gave the following instructions:

1st. The right to the possession is not before the jury, nor will the jury take into consideration the title, or whether Powell and Willingham or Davis has title to the land in controversy. The jury cannot take into consideration in any respect the title to the land.

2d. The entry upon a tract of land, and merely cutting timber thereupon, does not constitute a possession so as to authorize an action of forcible entry and detainer.

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