Smith v. Wallace

• Decision Date: 17 September 1938
• Docket Number: 35287
• Citation: 119 S.W.2d 813,343 Mo. 1
• Parties: E. D. Smith v. Mary Wallace and Roscoe Wallace, Appellants, and Elmer Harris
• Court: Missouri Supreme Court

119 S.W.2d 813

343 Mo. 1

E. D. Smith v. Mary Wallace and Roscoe Wallace, Appellants, and Elmer Harris

No. 35287

Supreme Court of Missouri

September 17, 1938

Appeal from Boone Circuit Court; Hon. W. M. Dinwiddie Judge;

Reversed and remanded.

L O. Schaumburg and Lamkin James for appellants.

(1) In his reply, plaintiff pleaded "the said real estate has remained in the possession of plaintiff." He is bound by his admissions in his own pleadings, whether they state the true facts or not, and ejectment being merely a possessory action, he cannot admit possession of the land in controversy and at the same time recover under the ejectment count in his petition. (a) Plaintiff must allege and prove that defendants were unlawfully in possession of the real estate in question. Secs. 1368, 1379, R. S. 1929; Sell v. McAnaw, 138 Mo. 267. (b) Ejectment is purely and solely a possessory action. Hacker v. Bleish, 3 S.W.2d 1008, 319 Mo 149. (c) Conflicting allegations in the pleadings are to be construed against the pleader, and in case of inconsistent allegations, he is bound by those which are against him. 49 C. J. 128; Koewing v. Greene County B. & L. Assn., 327 Mo. 680, 38 S.W.2d 40. And in determining whether a reply contains admissions, inconsistent allegations will be construed most strongly against the pleader. 49 C. J., p. 355, secs. 122-128. (2) Plaintiff, with the consent of defendant Harris, and of the court, dismissed his petition as against defendant Harris. It was error then for the court to submit to the jury any issue as between Harris and appellants, or as between Harris and respondent Smith. Harris was then and now is out of the case as to both counts in plaintiff's amended petition. Davis v. Hall, 90 Mo. 665. (3) An action at law and a suit in equity was erroneously tried and submitted to the jury at the same time, together with an issue in equity as between plaintiff and defendant Harris only and along with issues involving plaintiff and appellant, the lower court treating all the issues as at law. (a) Ejectment is an action at law. Peniston v. Schlude, 171 Mo. 136. (b) Defendant Harris' answer and plaintiff's reply converted the quiet title count in the petition to a suit in equity. Barron v. Wright-Dalton-Bell-Anchor Store Co., 292 Mo. 195, 237 S.W. 786; Ebbs v. Neef, 325 Mo. 1182, 30 S.W.2d 616; Rains v. Moulder, 338 Mo. 275, 90 S.W.2d 81; Miller v. Allen, 192 S.W. 967. (c) The count in ejectment alone was triable before the jury as a law case, and appellants were entitled to a directed verdict under the pleadings and under all the proof on that count. (d) It was error to try an action at law (ejectment) and a suit in equity (quiet title count praying equitable relief) at the same time, and to treat both as actions at law. Wynn v. Cory, 43 Mo. 304; Boeckler v. Mo. Pac. Ry. Co., 10 Mo.App. 448; Hoffman v. Bigham, 24 S.W.2d 132. (e) It was error to submit to the jury independent issues as between plaintiff and Harris with those as between plaintiff and appellants, and the verdicts of the jury and the judgment rendered thereon cannot stand. Hoffman v. Bigham, 24 S.W.2d 132; Jamison v. Culligan, 151 Mo. 410. (4) The court erred in failing and refusing to give appellants' instructions in the nature of a demurrer to plaintiff's evidence and appellants' instructions in the nature of a demurrer to all the evidence. Ejectment: (a) No evidence was adduced to show that either defendant was ever in possession of any part of the land in controversy, and certainly not of all of it. (b) Plaintiff cannot plead present possession, as he did in his reply and then recover in ejectment. (c) No competent evidence was adduced showing that plaintiff had title to nor the right of possession of the land described in his amended petition. In order to recover on this count it was necessary for plaintiff so to do. Finley v. Babb, 144 Mo. 403; Fenwick v. Gill, 34 Mo. 194; Beal v. Harmon, 38 Mo. 435. (d) The most that can be said of the evidence, under an interpretation most favorable to plaintiff and Harris, is that at one time plaintiff and Harris had possession of a comparatively small portion of the land in question and that they surrendered or relinquished that possession. Respondents cannot recover under that showing. (e) Plaintiff must recover, if at all, on the strength of his own title. Langford v. Welton, 48 S.W.2d 860. Quiet Title: (f) Plaintiff failed to prove any title in him to the real estate described in his amended petition, and said instructions should, therefore, have been given. 51 C. J. 262. (g) Since plaintiff failed to establish his own title, it was unnecessary to inquire into the validity of appellants' title. 51 C. J., pp. 260, 172. (h) In quiet title actions, plaintiff must prevail solely on strength of his own title, not on the weakness of defendants' title. Sec. 1520, R. S. 1929; Cullen v. Johnson, 29 S.W.2d 39, 325 Mo. 253. If plaintiff has no title, it is no concern of his to know whether or not defendants' claim is valid. Wheeler v. Reynold Land Co., 193 Mo. 279, 291; Orchard v. Mo. Lbr. & Min. Co., 184 S.W. 1138; Parker v. Wear, 230 S.W. 75; Heagy v. Miller, 187 S.W. 889. (5) It is essential that the verdicts particularly describe the real estate to be recovered. Brummell v. Harris, 148 Mo. 446; Blaske v. Wehmeyer, 226 S.W. 870, 285 Mo. 524; Howell v. Sherwood, 242 Mo. 570; Benne v. Miller, 149 Mo. 245; Franklin v. Haynes, 139 Mo. 311; Jones v. Eaton, 307 Mo. 172, 270 S.W. 109. As to the ejectment count, the verdicts are fatally defective for failure to find that either defendant was in possession of the land in dispute at the time the action was brought, and, if so, whether they were unlawfully in possession thereof. Brimmerle v. Landeau, 258 Mo. 252, 167 S.W. 532; Caldwell v. Stephens, 57 Mo. 589.

Cave & Hulen, John H. Windsor and Lionel Davis for E. D. Smith.

(1) Dismissal by plaintiff as to defendant Harris eliminated the reply from the case. The cause was tried on that theory. 49 C. J., p. 127, sec. 128; Sexton v. No. Mo. Cent. Ry Co., 194 S.W. 1082; Scott v. Davis, 200 S.W. 725. (a) The pleading of appellant, Mary Wallace, admitted possession of the greater portion of the land in controversy and the record shows unlawful possession of the entire island. (b) Allegations of the reply, complained of by appellant, are not a part of the record in this case for consideration on appeal. After dismissal as to Harris the reply went out of the case and all parties argued and submitted case on that theory. The reply was not tried nor submitted, and all parties are bound. Scott v. Davis, 200 S.W. 725. (2) Although plaintiff dismissed his petition as to defendant Harris this defendant remained in the case on the allegations and prayer of his answer, in the nature of a cross petition. Adams v. Carey, 226 S.W. 833; Sec. 1520, R. S. 1929. Appellants cannot complain of submitting issues to the jury, set forth in instructions offered by them. Humphreys v. Humphreys, 162 Mo.App. 417. The issue raised in the reply was not submitted. (3) Counts 1 and 2 of the petition are issues at law. The equitable issue, as between defendant Harris and plaintiff, raised by the reply, went out of the case on dismissal by plaintiff as to defendant Harris, and the cause was tried on that theory. Slovensky v. O'Reilly, 233 S.W. 478. (a) We do not dispute appellants' abstract statement of the law. (b) Counts 1 and 2 of the petition being at law were under the record, on appellants' demurrer, properly submitted to the jury and in this action appellant joined. Slovensky v. O'Reilly, 233 S.W. 478. (c) A suit to quiet title is an action at law, and not in equity. Cause was tried on that theory and appellants having asked court to instruct jury on Count 2, cannot now complain. Peterman v. Peterman, 286 Mo. 375; Edwards v. Rich, 180 S.W. 415. (d) No independent issues between plaintiff and defendant Harris were submitted to the jury. (4) The court, under the record, properly overruled the demurrers offered by the appellants. 15 C. J., p. 539, secs. 226-227; U.S. Comp. Statutes, sec. 4967; Sec. 11169, R. S. 1929; Kenny v. Henson, 107 S.W.2d 952. (a) Appellant, Mary Wallace, pleads possession and the record shows both defendants dispossessed plaintiff and Harris and took unlawful possession of "the island." Instruction B offered by appellants assumed some title in appellant, Mary Wallace. Appellants' brief assumes appellants had some claim. (b) Allegations of the reply are not in the case because of dismissal by plaintiff as to defendant Harris, to whose answer reply was directed, and trial of cause was on that theory. (c) Plaintiff's title originated by conveyance from Cooper County in 1914 and possession was continuous until unlawfully dispossessed by appellants in 1930. (d) The record shows plaintiff's possession was of the entire island and not a portion. Sec. 854, R. S. 1929; Gill on Titles (3 Ed.), p. 621, sec. 1385; Jackson v. Ward, 292 S.W. 11; 45 C. J., p. 528, sec. 197; Grady v. Royar, 181 S.W. 428; Dumm v. Cole County, 287 S.W. 445. (e) The record supports the verdict, as to title to the island, in plaintiff. (f) Evidence sufficiently shows title. Cullan v. Johnson, 29 S.W.2d 46. (5) The verdicts are in proper form. (a) Where the whole and not a fraction of the land described in the petition is the subject matter of the suit a general verdict is sufficient. Fiorella v. Jones, 259 S.W. 787; Howell v. Sherwood, 242 Mo. 513; Meier v. Meier, 105 Mo. 433; 19 C. J., p. 1203, sec. 287. By descriptions contained in the judgment an officer can locate the land. (b) The verdict on the ejectment count being general and not special is proper and includes all that was necessary for the jury to find to support it. Howell v. Sherwood, 242 Mo. 513; Meier v. Meier, 105 Mo. 443...