Richardson v. Liggett, 25164

• Citation: 453 S.W.2d 249
• Decision Date: 02 February 1970
• Docket Number: No. 25164,25164
• Parties: Francis H. RICHARDSON and Claude L. Schenck, Plaintiffs-Respondents, v. Jerry D. LIGGETT, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 249

453 S.W.2d 249

Francis H. RICHARDSON and Claude L. Schenck, Plaintiffs-Respondents, v. Jerry D. LIGGETT, Defendant-Appellant.

No. 25164.

Kansas City Court of Appeals, Missouri.

Feb. 2, 1970.

Rehearing Denied April 6, 1970.

John S. Newhouse and Norman Humphrey, Jr., Independence, for appellant.

R. A. Kelpe, Kansas City, for respondent.

CROSS, Judge.

This is an action for unlawful detainer, as defined by clause three of Section 534.030 V.A.M.S., to recover possession of real estate. As required by Chapter 534 V.A.M.S., which provides the remedy here pursued and prescribes procedures therefor, suit was commenced in magistrate court. In the complaint filed plaintiffs alleged in substance that on July 1, 1966, they became and have since remained lawfully entitled to possession of certain described real property (a dwelling house and premises) that on the named date 'the defendant wrongfully and without force, by disseizen, continued in possession of said premises and has ever since held and still holds possession thereof wrongfully and unlawfully'; that thereafter plaintiffs made due demand of defendant, in writing, for possession of the premises; and, that defendant has refused and neglected to quit and deliver possession. Plaintiffs prayed judgment for possession of the premises and $150.00 damages. After hearing evidence the magistrate found the issues in favor of defendant and against plaintiffs, and sustained defendant's motion to dismiss the complaint. Plaintiffs appealed.

On April 8, 1968, the circuit court tried the cause de novo, without a jury, and rendered judgment that plaintiffs have restitution of the premises and recover of defendant $100.00 per month for rents and profits (double the amount found to be the monthly value) pending restitution. Recovery of damages was denied. Defendant has appealed to this court. The only real question presented is whether plaintiffs had actual possession of the property at the times encompassed by the pleadings and was wrongfully dispossessed by defendant. As required by Civil Rule 73.01 our review will be de novo, on both the law and the evidence. The trial court will be accorded deference in matters of credibility

The real estate involved is a dwelling house and premises of about three acres located in a subdivision in Blue Springs, Jackson County, Missouri. From 1948 to 1958 defendant and his parents lived on the subject property. In July of 1958 both parents died and it appears that defendant acquired title to the property by inheritance upon demise of his mother, who survived his father by a few days. On April 16th, 1965, through a realty agent, defendant negotiated a loan of $2,250.00 for which he gave a negotiable installment note, and as security he executed and delivered a first deed of trust on the property in controversy. No installment of the principal was ever paid by defendant.

Thereafter, on March 28, 1966, defendant conveyed, by warranty deed, all his right, title and interest in the property to one Claude L. Conard for the purchase price of $700.00 and other considerations. The warranty deed recited that the conveyance was 'subject to deed of trust of record which unpaid balance Grantee(s) assume and agree to pay', and contained no reservations as to possession or occupancy of the premises.

On July 1st, 1966, Claude L. Conard and his wife conveyed all their right, title and interest in the property to Francis H. Richardson and Claude L. Schenck (plaintiffs) by warranty deed, duly executed and delivered. The instrument particularized that the transfer was subject to the Liggett deed of trust and note dated April 16, 1965, and all unpaid taxes and encumbrances of record. Thereafter plaintiffs paid all principal and interest due under the Liggett note; also all back taxes and unpaid insurance premiums which had accrued while defendant was the record owner. The note and mortgage were duly assigned to plaintiffs by the last previous holder. As of trial date no other encumbrance of record was outstanding as against plaintiffs' title.

The first of four points briefed by defendant charges that plaintiffs' complaint is defective in form and substance because it is not in conformity with clause three of Section 534,030 V.A.M.S., which defines 'unlawful detainer' in language as follows: '* * * (W)hen any person wrongfully and without force, by disseisin, shall obtain and continue in possession of any lands, tenements or other possessions, and after demand made, in writing, for the delivery of the possession thereof * * * shall refuse or neglect to quit such possession, such person shall be guilty of an unlawful detainer.' (Emphasis added.) Plaintiffs' complaint is faithfully patterned upon the quoted statute except that it omits the word 'obtain'(ed) which we have italicized. Defendant argues that an unlawful detainer action under clause three is available only against a person who both obtains and continues in possession of the lands in question, and that since the complaint fails to allege that defendant 'obtained' possession, it states no cause of action. This argument is to no avail because the complaint employs language which of itself connotes that defendant obtained' possession. We refer to the phrase 'by disseisen'. The word 'disseisen' is defined by Bouvier's Law Dictionary, Baldwin's Century Edition, as 'a privation of seisen' or 'a usurpation of the right of seisin and possession, and an exercise of such powers and privileges of ownership as to keep out or displace him to whom these rightfully belong.' The same question was before this court in Aubuchon v. Foster, 202 Mo.App. 225, 215 S.W. 781, a suit for unlawful detainer under the then second clause of the statute which was identical with present clause three of Section 534.030. The complaint alleged that defendant 'willfully and wrongfully holds possession' of land involved but did not allege that defendant 'obtained' possession. Even the phrase 'by disseisin' was absent from the pleading. Notwithstanding, the complaint was held sufficient. This result is consistent with our opinion in Kansas City Building and Loan Ass'n. No. 6 v. Harding, Mo.App., 58 S.W.2d 795, where in ruling a complaint of unlawful detainer sufficient we commented: 'Complaints made in a justice (mow magistrate) court are viewed with leniency, and, if such a complaint fairly comprises the elements of an unlawful detainer, it will be held to be sufficient. The complaint in this case is made in the usual manner and is ample to meet a substantial compliance with all necessary requirements, and is sufficient to confer jurisdiction and support the judgment rendered.' Also see Utt v. Winfrey, Mo.App., 235 S.W. 185. We, likewise, find the complaint in this case to be sufficient.

Defendant's second point raises the real issue in dispute. Asserting no claim to any vestige of ownership or title, defendant contends that he has had continuing possession of the property since 1948--even after he conveyed it to Conard, and the Conards in turn conveyed it to plaintiffs. Therefore, he argues, unlawful detainer is not an appropriate remedy and can not be maintained by plaintiffs because it is barred by Section 534.300 V.A.M.S., ¹ and because plaintiffs never came in possession of the property. Defendant frankly states that 'respondents have chosen the wrong action' and concedes that a suit in ejectment might 'conceivably' be available to plaintiffs. It is plaintiffs' position that defendant surrendered possession when he conveyed the premises to Conard, and that possession thereafter has been vested successively in Conard and themselves.

Plaintiff Schenck gave testimony tending to show that the house in question was not habitable and that defendant was not in possession of it. Prior to obtaining title, the witness had made several trips to the property. On none of those occasions was Liggett found on the premises. Once, while passing by the premises in an automobile he saw Liggett there working on a car. That was about a year before Liggett conveyed the property. After receiving the Conards' warranty deed, plaintiffs went promptly upon the premises 'to take possession of the property' and clean it up. They did not 'find anyone living in the house.' The building was in a very dilapidated condition and needed painting, the windows were broken out, the weeds had grown six to eight feet tall, and the surrounding yard was in a 'terrible' condition, full of trash and old sheds. The main part of the house was locked but the back door and back part of the house were open, and there were indications that children had been playing there. The 'lights' had been turned off and (as shown by defendant's testimony) the dwelling had been without heat for three years. Plaintiffs later returned to the property to clean up the premises and mow the weeds, after being notified to do so by the City of Blue Springs. That occasion was the first and only time they found defendant on the premises. Apparently a controversial discussion arose between the parties at that time and counter-demands to leave the premises were made. Plaintiffs stopped the mowing and peacefully took their departure. Witness Schenck testified on cross-examination that Mr. Conard had informed him that he (Conard) was previously in possession of the property.

Anticipating the filing of this suit, plaintiffs made numerous attempts to serve written demand for possession upon defendant, but they were unable to find him on the premises, or elsewhere. Resorting to an alternative method sanctioned by the statute, Section 534.050, and in accordance therewith, plaintiffs posted their demand and notice to vacate on the dwelling at the premises, mailed a copy to defendant's attorney after conferring with him on the telephone, and proceeded to file this action. Efforts to find defendant and serve him with summons were equally unavailing, although plaintiffs and the officer...