Spalding v. Mayhall

• Decision Date: 31 October 1858
• Parties: SPALDING, Plaintiff in Error, v. MAYHALL et al., Defendants in Error.
• Court: Missouri Supreme Court

27 Mo. 377

SPALDING, Plaintiff in Error,

v.MAYHALL et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1858.

1. The term disseizin, as used in the third section of the act concerning forcible entry and detainer (R. C. 1885, p. 787), has not a technical meaning; it applies to any entry, which is wrongful and without force, upon the actual possession of another.

2. In an action of unlawful detainer the merits of the title can in nowise be inquired into; it is immaterial whether the intruder is a naked trespasser or enters under a paramount title; the purchaser at a sheriff's sale under an execution is put to his ejectment if the defendant refuse to yield possession.

3. After a jury has returned a special verdict, the court should not resubmit the cause to them for a general verdict with instructions.

Error to Ralls Circuit Court.

This was an action of unlawful entry and detainer, to recover possession of certain premises in the town of New London. On the trial in the Circuit Court, the jury, under the instruction of the court, found a special verdict, of which the following is the substance: That plaintiff erected the house on the premises in controversy, and occupied the same up to September 17, 1855; that said premises had been purchased by Southworth and Wellman at a sheriff's sale, under an execution against plaintiff, Spalding; that Southworth and Wellman, in August, 1855, after their purchase, applied to plaintiff for possession, and plaintiff promised to deliver the possession to them within three weeks; that shortly after the expiration of that time plaintiff moved to Hannibal, locking up the house and taking the key with him; that plaintiff loaned the key to one Mr. Farmer to get some property belonging to Farmer out of the house under an agreement that Farmer would return the key to him; that a few days afterwards Mr. Southworth procured the key from Farmer and took possession of the premises; that Southworth and Wellman sold the premises to one Shulmire and put him in possession of the premises; that Shulmire sold to one Ellis; that Ellis rented the same to defendants and put them in possession; that they remained in possession until the institution of this suit; that on the 8th of July, 1856, plaintiff served on defendants a demand in writing for the possession of the premises; that defendants failed and refused to deliver possession.

The plaintiff asked the court to instruct the jury “that upon the facts as proved by the jury in their special verdict the jury ought to find the defendants guilty in manner and form as charged in the complaint.” The court refused so to instruct, but at the instance of the defendants instructed the jury “that if they believe the facts to be as found in the special verdict, the jury ought to find the defendants not guilty in manner and form as charged in the complaint.”

The jury found for defendants.

Porter and Harrison, for plaintiff in error.

I. The plaintiff's cause of action is made out by the special verdict. The court should have so decided. (R. C. 1855, p. 787.) Southworth unlawfully acquired possession; his possession being thus unlawfully acquired, his transferring that possession could not relieve himself, or any holding mediately or immediately under him, from the liability imposed by law in plaintiff's favor. (See Warren v. Ritter, 11 Mo. 354; 1 Monr. 127; 2 Dana, 111; 4 Dana, 168.)

Southworth & Wellman, for defendants in error.

I. The possession of defendant was not obtained and continued wrongfully by disseizin. The possession of defend...