Priestley v. Johnson

• Decision Date: 30 April 1878
• Citation: 67 Mo. 632
• Parties: PRIESTLEY v. JOHNSON, Appellant.
• Court: Missouri Supreme Court

67 Mo. 632

PRIESTLEY

v.JOHNSON, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Dallas Circuit Court.--HON. R. W. FYAN, Judge.

Peter Wilson and E. Y. Mitchell for appellant.

A. D. Matthews for respondent.

The house having been built with the knowledge and consent of Mothershead, it was personal property, and clothed with all the incidents of personalty. Matson v. Calham, 44 Mo. 368; Hines v. Ament, 43 Mo. 298; Aldrich v. Parsons, 6 N. H. 555; Osgood v. Howard, 6 Greenl. 452; Ashman v. Williams, 8 Pick. 402; Doty v. Gorham, 5 Pick. 489; Mott v. Palmer, 1 Comst. 571; Rogers v. Woodbury, 15 Pick. 156; Coleman v. Lewis,27 Penn. St. 291. The subsequent sale of the house to respondents, or the land to Johnson, did not change the character of the property. Lowenberg v. Bernd, 47 Mo. 297; Ham v. Kendall, 111 Mass. 298; Morris v. French, 106 Mass. 326; Howard v. Fessenden, 14 Allen (Mass.) 124.

NORTON, J.

This is a suit, instituted in the circuit court of Dallas county, for the recovery of damages for the wrongful taking and withholding from plaintiff a certain house described in the petition. The answer of defendant puts in issue the allegations of the petition, and sets up that the land on which the house in question is located was on the 14th of December, 1872, conveyed by one Mothershead and wife to Peter Wilson, in trust, to secure the payment to defendant of the sum of $1,750, and that on the 24th day of February, 1873, said Mothershead again conveyed said real estate to said Wilson, in trust, to secure to appellant the payment of the sum of $184, and that on the 15th day of September, 1873, the said Mothershead again conveyed the said lands to Wilson to secure the payment to appellant of the sum of $267.17, and that all of said deeds were made, executed and delivered without any reservation of the house in question contained therein; and that on the 9th day of December, 1873, to satisfy the debts mentioned and secured in said several deeds, and a further consideration sufficient to make the whole sum paid for said lands $4,000, the said Mothershead, by general warranty deed, conveyed the said real estate in question without any reservation of said house specified therein; that appellant is the legal owner of said house, &c. The answer was denied by replication and a trial had, which resulted in a judgment for plaintiff in the sum of $250, from which the defendant has appealed to this court.

The evidence offered by plaintiff in support of the petition tended to show that one Rathburn built a house on the land of one Mothershead, with the understanding that he should have the right to remove it; that the house so built was afterwards sold by said Rathburn to one Crank and his wife, and Mrs. Human, now the plaintiff, Priestley; that the purchase was made in 1871, with the knowledge and consent of Mothershead, who encouraged them to buy, and assured them that if they bought the house they could remove it at any time they chose to do so. It also tended to show that Johnson, before he purchased the land of Mothershead, was informed of plaintiff's claim to the house, and recognized her right to it; that she rented the house to Mothershead before he sold to defendant, and also to defendant; that plaintiff, Mrs. Priestley, had acquired all the right of Crank and wife to said house; had applied to Johnson for permission to remove it, which he refused, and appropriated the house to his own use. The defendant offered in evidence three deeds of trust, executed by Mothershead, and conveying the land on which the house was located to Wilson, in trust, as stated in his answer, and also a deed from Mothershead to defendant, for the property. These deeds proved the statements in the answer in regard to them. Defendant also offered in evidence a deed of mortgage to the same land from Mothershead to one Booth, dated in 1869, and also the transcripts of two judgments obtained against Mothershead, before a justice of the peace, for the sum of $268.17, filed in the office of the clerk of the circuit court of Dallas county on the 13th day of October, 1873. Defendant testified that the money to secure which the first deed of trust mentioned in his answer was executed was applied to the payment of the balance due on the Booth mortgage and the two judgments. He further testified that he had no knowledge or notice of plaintiff's claim to the house.

Eight instructions were given on behalf of plaintiff, substantially declaring that if the jury believed from the evidence that the house was built on the land of Mothershead, with his consent and with an agreement that it might at any time be removed, it did not constitute any part of the realty, but was personal property, and that if defendant bought the land afterwards of Mothershead, with knowledge of plaintiff's claim to the house, and appropriated it to his own use, refusing to allow plaintiff to remove it and...