Prendergast v. Graverman

• Decision Date: 04 June 1912
• Citation: 147 S.W. 1094,166 Mo.App. 33
• Parties: MARY PRENDERGAST, Respondent, v. CHARLES GRAVERMAN, Appellant
• Court: Missouri Court of Appeals

147 S.W. 1094

166 Mo.App. 33

MARY PRENDERGAST, Respondent, v. CHARLES GRAVERMAN, Appellant

Court of Appeals of Missouri, St. Louis

June 4, 1912

May 8 1912, Argued and Submitted

Appeal from St. Louis County Circuit Court.--Hon. G. A. Wurdeman Judge.

AFFIRMED.

Judgment affirmed.

Wm. F Broadhead for appellant.

(1) To maintain this action, it was necessary for the complainant to prove that at the time of the alleged entry and disseizin by defendant, she was in the actual, visible, open, exclusive, peaceful and bona fide possession of the premises claimed, and this she has not done; the evidence does not even tend to show such possession. Armstrong v. Hendricks, 67 Mo. 542; Keen v. Schweigler, 70 Mo.App. 409; McCartney v. Alderson, 45 Mo. 35, 49 Mo. 450; DeGraw v. Prior, 60 Mo. 56; Dyer v. Reitz, 14 Mo.App. 45; Spalding v. Mayhall, 27 Mo. 379; Collier v. Green, 83 Mo.App. 166; Milem v. Freeman, 136 Mo.App. 106; Underwood v. Caruthersville, 146 Mo.App. 294; Anderson v. Railroad, 128 Mo.App. 382; Ford v. Fellows, 34 Mo.App. 630; School District v. Holmes, 53 Mo.App. 487; Buck v. Endicott, 103 Mo.App. 248. (2) If there was any evidence tending to show possession of said premises in anyone, other than the defendant's landlord, it was in John Brennan, complainant's tenant, whose term had not expired or been surrendered, and she cannot maintain this action for an invasion of the possession of her tenant. Reed v. Bell, 26 Mo. 218; Burns v. Patrick, 27 Mo. 434; Bell v. Cowan, 34 Mo. 251; McCartney v. Alderson, 45 Mo. 35, 49 Mo. 456; Hyde v. Fraher, 25 Mo.App. 414; Krevet v. Meyer, 24 Mo. 107; Collier v. Green, 83 Mo.App. 166; Holzhausen v. Hoskins, 115 Mo.App. 267; Adams v. Bonnefon, 124 Mo.App. 457. (3) The length of time defendant's landlord had claimed the disputed premises, was competent and material as a foundation for proof of acts of possession, pursuant to such claim, of which this defendant had a right to avail himself, in order to rebut complainant's case, and to show the good faith of his own, and of his landlord's claim, from whom it was derived; hence the court erred in sustaining complainant's objection to Vogelsmeier, testifying as to how long he had claimed the premises, especially as such objection was made without stating any grounds therefor. Buck v. Endicott, 103 Mo.App. 248; Milem v. Freeman, 136 Mo.App. 106. (4) There was a lack of substantial evidence to support the finding of the lower court, and this court may reverse it for that reason. Milem v. Freeman, 136 Mo.App. 117; Buck v. Endicott, 103 Mo.App. 248.

R. H. Stevens for respondent.

(1) When a tenant leaves either at the end of his term or on surrender of lease, the landlord comes into possession, though not personally present. Frank v. Nichols, 6 Mo.App. 72. (2) Any overt act indicating dominion and a purpose to occupy, and not to abandon the premises, will satisfy the requirement. Willis v. Stevens, 24 Mo.App. 496. (3) In order to constitute such a possession as will sustain an action of forcible entry and detainer, it is not necessary that the party should stand on the land, to keep a servant or agents there; but any act done by himself on the premises, indicating an intention to hold the possession thereof to himself will be sufficient to give him the actual possession. Bartlett v. Draper, 23 Mo. 407. (4) Where a tenant leased at the end of his term or by surrender of his lease, the landlord comes into the sole possession and must be considered possessed of the premises although not personally present. May v. Luckett, 48 Mo.App. 472.

REYNOLDS, P. J. Nortoni and Caulfield, JJ., concur.

OPINION

REYNOLDS, P. J.

This is an action for unlawful detainer of nine and a fraction acres of land in St. Louis county, the action brought under section 3321, Revised Statutes 1899, now section 7657, Revised Statutes 1909. The cause was tried before the court, a jury having been waived, and at the conclusion of the testimony defendant asked four declarations of law. First, that for plaintiff to recover in this action, she must show that she was in the actual, peaceable, visible, open and exclusive possession of the land described in the complaint at the time of the alleged unlawful entry by defendant and that defendant then unlawfully entered upon and disseized her of the land. Second, that the possession necessary to be shown by plaintiff is a real, exclusive, visible, actual, bona fide possession and not a mere scrambling possession taken for the purpose of compelling the opposing party to institute a suit to determine the title or right to possession of the land in dispute and unless the court is satisfied from the evidence that plaintiff was in the real, exclusive, visible, actual and bona fide possession of the land at the time of the alleged unlawful entry complained of, then the finding and judgment must be in favor of defendant. Third, that if the court sitting as a jury found from the evidence that at the time of the alleged unlawful entry on the land described in the complaint, one John Brennan, as a tenant of plaintiff, was in possession of the land, she cannot recover. Before offering these declarations of law defendant asked for a declaration that under the pleadings and evidence plaintiff could not recover and the finding and judgment must be in favor of defendant. The court refused this, defendant duly saving exception. Plaintiff asked no declarations of law and none were given by the court of its own motion.

In the brief of counsel for appellant it is stated that the court filed a written opinion in the case from which counsel quotes. No such written opinion is in the abstract of the record and it is not before us in such shape that we can notice it. The court rendered judgment in favor of plaintiff and against defendant, and finding defendant guilty as charged in the complaint and assessing the damages at one cent and the value of the monthly rents and profits at one cent, ordered restitution of possession and judgment for double damages and for costs. Filing a motion for new trial and excepting to that being overruled, defendant has duly perfected his appeal to this court.

At the trial of the cause each of the parties introduced plats of surveys that had been made by different surveyors and the witnesses in testifying frequently referred to these plats but the reference to them is so much by pointing out places on them that it is very difficult to follow the testimony as to the different locations concerning which the witnesses were testifying. That, however, is not so material as we think we have been able to gather an intelligible idea of the general trend of the testimony. Two sons-in-law of plaintiff and her late husband, a Mr. Brennan and a Mr. Pearia, had been tenants of Mr. Prendergast during his lifetime and of his wife after his death, occupying and cultivating various portions of a large tract which plaintiff claimed, Brennan in possession of and cultivating the nine and a fraction acres involved in this action. The evidence tends to show that his tenancy terminated sometime in the year 1906, or that he had then abandoned possession, and that about the time alleged in that complaint, that is about March 1, 1907, he and Pearia going upon the land found defendant in possession of it. They told him that the land he was occupying was "our" land, evidently referring to it as belonging to the family, as neither of them claimed as tenants or as owners at that time. They started to fill out breaks in a wire that it appears had been around the land, or a part of it, with the intention of inclosing the whole or a part of the fractional nine-acre tract. Defendant told them that he was placed in possession of it by a Mr. Vogelsmeier and that Vogelsmeier claimed that that was his land, and he warned them not to attempt to disturb him or to put up the wire around the land. Not desiring trouble, as one of these men testified, they...