Rutherford v. Ullman

• Decision Date: 29 February 1868
• Parties: ARCHIBALD S. RUTHERFORD, Respondent, v. BENJAMIN ULLMAN, Appellant.
• Court: Missouri Supreme Court

42 Mo. 216

ARCHIBALD S. RUTHERFORD, Respondent,

v.BENJAMIN ULLMAN, Appellant.

Supreme Court of Missouri.

February Term, 1868.

Appeal from Fifth District Court.

Vories, Hill, Woodson & Jones, for appellant.

I. The statute under which this proceeding was had was only intended to give a party a remedy, where he owned land and was in undisturbed possession thereof, by compelling a person who claimed to have some adverse title to assert it in the court and have the title quieted. But it was not intended to confer this right upon any one who was in a condition where he could bring an ejectment himself to try the title. If the adverse claimant was in possession of any part of the land, he could bring his suit against him, and did not need the statutory remedy.

II. There would be no just or equitable reason for compelling the defendant to sue, where the plaintiff could just as well sue as the defendant, the latter being in possession of part of the property. (Gen. Stat. 1865, p. 663, § 54; 31 Mo. 333.)Parker, Strong, Chandler & Sherman, for respondent.

I. In this proceeding, title cannot be inquired into. The one in possession may institute this proceeding. (Shultz v. Arnot et al., 33 Mo. 172.)

II. Though a person's premises are occupied by a tenant, it is the landlord's possession in fact and in law. He whom the law declares in possession, and not he whom it declares should be in possession, is the one we maintain to be the ““actual possessor.” If Ullman entered into the vacant room under plaintiff's tenant, it is still plaintiff's possession.

III. Whatever the testimony discloses the facts to be in relation to the transactions between defendant and plaintiff's tenant, the law is settled that “even an adverse claimant who gets into possession by tampering with the tenant cannot resist the landlord's claim where the tenant himself could not.” (Taylor Land. and Ten. § 705, n. 7; 4 Watts & S. 188; 2 Binney, Pa., 468 6 id. 59-62.

IV. An action of ejectment brought to try the title to a single room will not try the title to the whole premises. Admit that defendant is not only in possession but the owner of that room, cannot the plaintiff, if in possession of the remainder, compel the defendant to try the title which he sets up against the plaintiff?

V. Plaintiff cannot maintain ejectment upon the facts of this lease; for ejectment is a possessory action, and the plaintiff cannot recover in such action if he is in possession (Gen. Stat. 1865, p. 606, § 8; 25 Penn. St. 399); nor if he is in possession of part (Monroe v. Ward, 4 Allen, 150-1).

WAGNER, Judge, delivered the opinion of the court.

This was an action commenced by the respondent against the appellant, in the Court of Common Pleas for Buchanan county, under section 53, chapter 165, of General Statutes, providing for quieting titles. The plaintiff, in his petition, charged that he was the owner in fee of a certain lot in the city of St. Joseph, and was in lawful and peaceable possession of the same, and that he was credibly informed and believed that the defendant made some claim to the property adverse to the estate of the plaintiff; and prayed that the defendant might be summoned to show cause why he should not bring an action to try his alleged title, if he had any, to the said property. The defendant, in his answer, denied that the plaintiff was the owner in fee, or in the lawful or any other possession of the lot in controversy; but stated that the lot was the property of the defendant, and that the defendant, at the time of plaintiff's filing his petition, and for a long time before and ever after, was in the actual possession of a portion of...