Stone v. Malot

• Decision Date: 30 September 1841
• Citation: 7 Mo. 158
• Parties: STONE v. MALOT.
• Court: Missouri Supreme Court

7 Mo. 158

STONE

v.MALOT.

Supreme Court of Missouri.

September Term, 1841.

APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY.

S. L. LEONARD, for Appellant. 1st. The court erred in giving the instructions asked by the plaintiff, for the following reasons, upon the supposition of facts contained in the plaintiff's instructions, the jury are required to find for the plaintiff, which is erroneous--because, they are not required to find to be the fact: first, that the plaintiff was in possession at the time of the entry of the defendant; second, that the defendant entered upon the premises contrary to the will of the plaintiff; third, that the plaintiff was entitled to the possession of the premises at the time of the institution of the suit; fourth, that the defendant continued in the possession of the premises contrary to the will of plaintiff, from defendant's entry up to the time of the institution of the suit; for it is necessary for the plaintiff to recover to establish each of the four preceding things. See § 2 and § 18, act of Forcible Entry and Detainer, Digest of 1835. 2nd. This is only a possessory action, and the title cannot be inquired into. See § 18 and § 25, act of Forcible Entry and Detainer, Dig. 1835. But the instruction is erroneous, because it treats of the title of pre-emption rights exclusively. 3rd. The evidence shows the defendant to have been in the actual possession, under a pre-emption right, under the act of Congress, approved June 1st, 1840; see the Act. There is no pretense that he had parted with his right to the possession in any way; which being the case, he cannot be moved, even though the plaintiff had a higher title in this form of action, it being merely a possessory action. 4th. The instruction is not warranted by the testimony. The testimony shows that the plaintiff put Moore into possession: and Moore, after having right to the possession more than a year, put the defendant into possession for a valuable consideration, without notice of any claim of said Moore (for no notice was proved, and none can be presumed), so that there can be no pretense of a forcible entry by the defendant, as to the plaintiff. But upon the hypothesis that this is a mere trial of the strength of pre-emption rights, then the instruction is erroneous; because, 5th. The evidence shows the defendant to hold a pre-emption under the act of June 1st, 1840; and the plaintiff, to recover, must show a right under the act of June 22nd, 1838; but he cannot, because, first, he did not reside on the land from February 22nd, 1838, to June 22nd, 1838; second, he was not the owner of the improvements during the same period, the right being in his son. He cannot recover under the act of June 22nd, 1838, as amended by act of June 1st, 1840, if he so held, because at the same time a right was vested in the defendant, that a right was vested in the plaintiff. But he cannot so hold, because, 1st, he was not the owner of the improvements, and consequently, not holding in his own right, during the four months next preceding June 22nd, 1838. 2nd, to hold by cultivation, the cultivation must cover the same period required for residence, but the cultivation commenced in April or May, and did not extend back to February 22nd, 1838; nor did the tenant reside on the land the four months. See Pre-emption Laws, June 22nd, 1838, and June 1st, 1840.5th. The court erred in refusing the instructions asked by defendant; because, first, the plaintiff put Moore in possession, and Moore put the defendant in possession through a purchase for a valuable consideration without notice (for no notice is proven, and in the absence of proof the presumption is for defendant), and therefore the defendant cannot be guilty of a forcible entry and detainer. But upon the hypothesis that the jury might find for the detainer alone, then the plaintiff should have given the defendant notice to quit. See § 3, act Forcible Entry and Detainer, Digest 1835, and consequently the court should have given the 1st, 2nd, and 8th instructions asked by defendant. Second, in refusing the 3rd, 4th, 5th, 6th, 7th and 9th instructions asked...