Tucker v. McClenney

• Citation: 77 S.W. 151,103 Mo.App. 318
• Parties: E. C. TUCKER, Respondent, v. A. M. McCLENNEY, Appellant
• Decision Date: 09 November 1903
• Court: Court of Appeals of Kansas

77 S.W. 151

103 Mo.App. 318

E. C. TUCKER, Respondent, v. A. M. McCLENNEY, Appellant

Court of Appeals of Missouri, Kansas City

November 9, 1903

Appeal from Boone Circuit Court.--Hon. John A. Hockaday, Judge.

AFFIRMED.

Judgment affirmed.

N. T Gentry and Chas. J. Walker for appellant.

(1) The allegations of plaintiff's complaint are that "On March 1, 1902, he had the legal right to the possession of etc." His own testimony shows that he had not only sold most of this land to McClane and Castleman before the institution of this suit, but that he executed and delivered deeds to the purchasers, which deeds were filed and recorded on February 8th, and February 11th respectively. When this case is stripped of its outside issues, the undisputed evidence conclusively shows that the plaintiff was not entitled to recover judgment for the possession of the whole farm, to-wit: one hundred and eighty acres. Plenty v Knester, 41 Mo.App. 447; Kelley v. Clancy, 15 Mo.App. 519; Kaulleen v. Tillman, 69 Mo. 510; Sexton v. Hull, 45 Mo.App. 345; Bradford v. Tilly, 65 Mo.App. 184; Pierce v. Rollins, 60 Mo.App. 497; R. S. 1899, sec. 4136; Chaffin v. Brockmeyer, 33 Mo.App. 97, and cases cited; Pullis v. Kalb, 62 Mo.App. 29; Snyder v. Railroad, 86 Mo. 613; Bank v. Commission Co., 61 Mo.App. 150. (2) The so-called exhibition of plaintiff's deed to defendant was insufficient. (3) Again, the evidence does not show that the defendant was in possession of all the land in controversy: it in fact shows the contrary. Loan v. Smith, 76 Mo.App. 510 and cases cited; Spring Co. v. Tool Co., 96 Mo.App. 518.

C. B. Sebastian for respondent.

(1) The undisputed evidence shows that plaintiff sold to McLain and Castleman with the express agreement that possession was not to be given until he got possession. This question was decided in the case of Logan v. Wolvine, 56 Mo.App. 458. (2) Appellant further contends that plaintiff did not make sufficient exhibition of his deed. This was also a question of fact for the trial court and the finding is sustained by the evidence. (3) The finding and judgment of the learned judge who tried this case was for the right party. The defendant is in no wise aggrieved by it, as it is admitted that he was holding the farm, after the expiration of his lease and in violation of the rights of the plaintiff.

OPINION

SMITH, P. J.

This is an action of unlawful detainer which was brought to recover the possession of certain farm lands consisting of 180 acres. The material facts which the evidence tends to prove and which gave rise to the controversy may be shortly stated in this wise, that is to say: The Equitable Securities company--a corporation--on June 9, 1894, by a certain deed acquired the fee simple title to said lands; that afterward the defendant went into possession of said lands under a lease from the said securities company which was to expire on the first day of March, 1902; that before the expiration of said lease, and on January 2, 1902, the said securities company sold and by deed conveyed said tract to this plaintiff; that on February 2, 1902, the plaintiff sold and by deed conveyed 109.4 acres of said tract to one Chas. McLane; that on February 11, 1902, the plaintiff further sold and conveyed forty-four acres of said tract to one G. V. Castleman; that there was a stipulation in each of said deeds to the effect that the grantor therein--the plaintiff--was "to give possession as soon as he got it and not before;" that on the ninth of March, 1902, the plaintiff called on the defendant, who was still in possession, and demanded that he deliver to him, plaintiff, the possession, accompanying his demand with an exhibition of the deed which the said securities company had delivered to him; that the defendant refused to turn over the possession to the plaintiff, and three days thereafter this action was brought. There was a trial in the circuit court in which the plaintiff had judgment and defendant appealed.

At the beginning of the trial the defendant objected to the introduction of any evidence on the ground that the complaint nowhere alleged the relation of landlord and tenant between plaintiff and defendant, or how the plaintiff derived any right to the land. This objection was overruled, and, as we think, properly so.

The complaint alleged that on the first day of March, 1902, the plaintiff had the legal right to the possession of said land--describing it--and that he had ever since been and still was entitled to the possession thereof; that the defendant willfully and without force holds the possession of said lands after the termination of the time for which they were let to him, etc. The allegations of the complaint followed form No. 135, Revised Statutes 1899, which is one of those prepared by the revisors of the statutes of 1855, as adapted to the statute, and which, it may be seen, has been carried forward into the appendix of each successive revision. Bradford v. Tilly, 65 Mo.App. 181. It seems to us that the complaint is quite sufficient under the statute. R. S., sec. 3321, 1899. We have not been referred by the defendant's very learned and industrious counsel to any established precedent which upholds their contention.

At the conclusion of all the evidence the defendant requested an instruction in the nature of a demurrer which was by the court denied.

It is contended that the exhibition of the deed by plaintiff to defendant was insufficient. By turning to the statute in relation to forcible entry and detainer, it will be seen that it nowhere requires the grantor or the assignor of any lessor to exhibit to the lessee his deed in...