Reed v. Bell

• Decision Date: 31 January 1858
• Citation: 26 Mo. 216
• Parties: REED, Defendant in Error, v. BELL et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

26 Mo. 216

REED, Defendant in Error,

v.BELL et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1858.

1. To maintain an action of forcible detainer the plaintiff must be entitled to the possession of the premises in controversy.

2. Where a tenant invites and consents to the entry of a person upon the premises occupied, such entry is not “wrongful, without force, by disseisin,” as against the landlord, within the second clause of section third of the act concerning forcible entry and detainer.

Error to Callaway Circuit Court.

This was an action of forcible detainer. Plaintiff stated in her complaint that on the first day of March, 1856, she was entitled to the possession of a certain tract of land [describing it] “and the house and appurtenances thereto belonging; and that Andrew K. Bell and James Bell wrongfully and without force, by entering into and upon said premises then held by complainant's tenant, obtained, and continue in, possession of said premises after demand,” &c.

The cause was tried by the court without a jury. It appeared from the testimony of one Evans, that he was in possession of the premises described in the petition, and proposed that the defendants should come and live in the house, there being a vacant room not wanted for the use of his own family. This proposition was accepted. Demand of premises was admitted. It was also in evidence that plaintiff had tendered to Bell a “lease bond” “which he refused to sign, stating that he had come into possession of the land by the consent and permission of Evans, though he had acknowledged plaintiff's right of possession, and had intended to take a lease bond from her.” The defendants moved the court to declare the law as follows: “If from the evidence in the cause it appears that the defendants came into possession of the premises mentioned in the complaint with the consent of the tenant of Winifred Reed, then they did not come into the same wrongfully and without force and by disseisin, and are not liable in this action.” The court refused to declare the law, and gave judgment in favor of the plaintiff.

H. C. Hayden, for plaintiffs in error.

I. To maintain an action of forcible detainer the plaintiff must be entitled to the possession. Reed's tenant was in possession of the premises, and he gave permission to the Bells to occupy a vacant room. The entry was not wrongful, without force and by disseisin as against the plaintiff; certainly not against the tenant. Not a...