Roussin v. Benton

• Decision Date: 30 September 1840
• Citation: 6 Mo. 592
• Parties: ROUSSIN ET AL. v. BENTON.
• Court: Missouri Supreme Court

6 Mo. 592

ROUSSIN ET AL.

v.BENTON.

Supreme Court of Missouri.

September Term, 1840.

ERROR TO THE CIRCUIT COURT OF WASHINGTON COUNTY.

SCOTT, ZEIGLER and FRISSELL, for Plaintiff in Error. 1st. That the owners of the land cannot maintain the action of trespass unless the possession be vancant or he be himself in the actual possession. If there be a tenant in possession he, not the landlord, must bring the action. And it is immaterial whether the injury complained of be done to the possession or to the freehold. Campbell v. Arnold, 1 Johns. Rep. 311; Welcham v. Freeman, 12 Johns. Rep. 183. 2nd. That the action of trespass does not lie against one in the actual possession of land afterwards purchased from the United States by a different person. He may be a trespasser as to the United States, but not as to the purchaser. Stryvesant v. Thompkins, 9 Johns. Rep. 61. 3rd. That the certificate of the receiver in the form lately used under the pre-emption law of 1838, is not such evidence of title as to enable the holder to maintain the action of trespass against one in the actual possession of the land designated in the certificate.

COLE, for Defendant in Error. 1st. It will be insisted that the Circuit Court did not err in refusing the evidence preserved by first bill of exceptions. 2nd. That there was no error in refusing defendant's instructions and in giving the substitute as shown by second bill of exceptions. 3rd. That the certificate of the reveiver was legal evidence in the cause.

TOMPKINS, J.

Benton brought an action of trespass against Roussin and others in the Circuit Court of Washington county, when judgment belng given for him, the defendants prosecute their writ of error in this court to reverse the judgment of the Circuit Court. On the trial of the cause the court was prayed to instruct the jury, that if they believe from the evidence that Lord was in possession of the premises as tenant to the plaintiff at the time the trespasses were charged to be committed then Benton could not maintain his action of trespass. This instruction the court refused to give, and instructed the jury that Lord might recover for injuries done to his possession, but that the injury complained of was an injury to the freehold, and that for such injury the owner of the freehold could maintain his action of trespass, although Lord might be his tenant in possession. The opinion of the court is excepted to, and the giving of the instructions is assigned as error.

The instruction...