Samuel McCartney's Adm'x v. Alderson

• Decision Date: 31 October 1869
• Parties: SAMUEL MCCARTNEY'S ADMINISTRATRIX et al., Respondents, v. B. A. ALDERSON and CHARLES BRUERE, Appellants.
• Court: Missouri Supreme Court

45 Mo. 35

SAMUEL MCCARTNEY'S ADMINISTRATRIX et al., Respondents,

v.B. A. ALDERSON and CHARLES BRUERE, Appellants.

Supreme Court of Missouri.

October Term, 1869.

Appeal from Sixth District Court.

Lewis & Bruere, for appellants, cited Wood v. Dalton, 26 Mo. 582; Pentz v. Kuester, 41 Mo. 450; Burns v. Patrick, 27 Mo. 434; Reed v. Bell, 26 Mo. 218.

Lackland & Alexander, for respondents, cited Gen. Stat. 1865, ch. 187, § 36; Garrison v. Savignac, 25 Mo. 47; Bernecker v. Miller & Miller, 40 Mo. 473; Goerges v. Hufschmidt, 44 Mo. 179; Bartlett v. Draper, 23 Mo. 409; Spalding v. Mayhall, 27 Mo. 380; King's Adm'r v. St. Louis Gas Company, 34 Mo. 304; Keyser v. Rawlings, 22 Mo. 126, 136; Draper v. Shoot, 25 Mo. 203-4; Menkens v. Ovenhouse, 22 Mo. 70; Williams v. Dougan, 20 Mo. 186; Johnson v. Prewitt, 32 Mo. 554; Carondelet v. Simon, 37 Mo. 408.

BLISS, Judge, delivered the opinion of the court.

This was an action for wrongful disseizin and detainer of a vacant town lot in St. Charles, tried on certiorari, in the St. Charles Circuit Court, where the plaintiff obtained judgment, which judgment was affirmed by a divided opinion of the District Court.

It appears that some fifteen years since, McCartney purchased of one Ellen Taylor two adjoining town lots in St. Charles, and that both lots were embraced in the same deed. Upon one of them was a house which had been occupied by Mrs. Taylor, but it does not clearly appear that McCartney ever has had actual possession--at least, he has not had for many years. Upon the trial, the plaintiff claims to have proved that, at the time of the disseizin, one Anna Goerges was in possession of the house as his tenant, but she had no control of the other lot, which is the one in controversy. It is undisputed that this lot is uninclosed, and, at the time of entry by defendants, was not in the actual possession or occupancy of any one. They took possession without force, and fenced it, claiming title from the school directors of St. Charles. It is not claimed that this lot had been ever actually occupied since it was purchased by McCartney, although it is in evidence that he paid taxes upon it, and other “acts of ownership” are spoken of, but it does not appear what they were.

The principal question that arises in this case, and the one upon which turns the plaintiff's right to recover, is that of possession. The suit was commenced before the death of McCartney, and the defendants claim that he had no such possession of the lot in controversy as would warrant this action. The law is correctly given in several of the instructions to the jury, but they are all qualified by the third, which gives the views of the court as to what constitutes possession. It is as follows: “3. If it appear, from the evidence, that the premises fenced up by the defendants was a part of the lot described in the deed from Ellen Taylor to Samuel McCartney, and that said part, so fenced up by defendants, was included in the limits of the lot described in said deed, and that on the lot so described in said deed there was a house or other improvements, and that the plaintiff paid the taxes on said lot, including the portion fenced up by defendants, and exercised acts of ownership over the same for a long time before, and up to the time the fence was put there by defendants, then the plaintiff, Samuel McCartney, has such possession of the portion fenced up by defendants as will enable him to maintain this action.”

This instruction, taken in connection with the evidence, seems to involve three legal propositions--it certainly does involve two of them: first, that the possession of Ellen Taylor, from whom McCartney purchased, was sufficient, so far as possession is required, to enable him to bring this action; second, that no actual possession is necessary, but that paying the taxes and exercising acts of ownership are sufficient; and, third, that the possession of a portion of the premises, to-wit: the house, carries with it the possession of the adjoining lot. I understand the well-written opinion of a majority of the judges of the District Court to sustain each of these propositions.

If McCartney is able to avail himself of the possession of those from whom he claims title, it must be by virtue of section 36, chapter 187, Gen. Stat. 1865, which reads as follows: “Heirs, devisees, grantees, and assigns of any lands, tenements, or other real possessions, shall be entitled to the same remedies against persons who were guilty of forcible entry and detainer, or of unlawful detainer of such land, tenements, or other real possessions, before the descent, devise, grant, or assignment thereof, as the ancestor, devisor, grantor, or assignor was entitled to by virtue of this chapter.”

This section was incorporated into our system in 1865, and to remedy a great inconvenience. This action may be brought at any time within three years of dispossession, but if in the mean time the person dispossessed should die or sell his property, the remedy, as the law before stood, ceased. The heir, grantee, etc., could not sue, because they had not been dispossessed, and must resort to ejectment. Hence it is now provided that they, too, may sue, and without personal dispossession. But have they any greater rights than the ancestor, if living, or vendor, if he had not sold, would have had? Must not the defendant still be found guilty of actual dispossession? The object of this amendment was not to change the rights or liabilities of the parties, but, when they had accrued, to provide that they should not lapse by death or sale. Hence the provision that the entry and detainer must be “before the descent, devise,” etc. In the case before us, the entry of defendants was more than ten years after the possession of McCartney's vendor; so it is perfectly clear that he can not avail himself of that possession.

Upon the second proposition, regarding the plaintiff's possession, we regard the law as well settled. This is a possessory action merely; the title can not be inquired into....