Von Phul v. Penn

• Decision Date: 31 January 1861
• Citation: 31 Mo. 333
• Parties: VON PHUL, Plaintiff in Error, v. PENN, Defendant in Error.
• Court: Missouri Supreme Court

31 Mo. 333

VON PHUL, Plaintiff in Error,

v.PENN, Defendant in Error.

Supreme Court of Missouri.

January Term, 1861.

1. In order to institute proceedings under the statute (R. C. 1855, p. 1241, § 62,) the petitioner should be in actual possession of the premises. The object of this proceeding is not for the purpose of settling the title to the premises in the first instance, but is only preliminary to an action which the defendant or adverse claimant may be ordered to bring for that purpose.

Error to Pettis Circuit Court.

Stephens & Vest, for plaintiff in error.

I. The only question involved in the case is whether a party can show such possession as is contemplated in section 62 by showing title to the land. If actual possession, pedis possessio, is necessary, then tracts of land not in the actual possession of either claimant would not be embraced in the provisions of the section. We contend, on the other hand, that this section was intended by the legislature as a substitute for the old chancery proceeding to ““quiet title,” and that when neither party has actual possession. Here, for instance, is a party living in St. Louis, having a clear title to a tract of land in Pettis county. There is no actual adverse possession, but he hears that a party claims the land. Now, can not he maintain his suit under the statute, and on the trial show possession by showing title? The possession is presumed to be with the title, and having shown title to the land the possession goes with it, unless actual adverse possession is shown. The statute contemplates and requires that the plaintiff should establish title in order to maintain his suit. He must show both title and possession, but in this case the court below would not allow the plaintiff to make out his case as he pleased to conduct it, but excluded the evidence of title without waiting for anything more.

Adams, for defendant in error.

I. The only question in this case was the actual possession of the land. Unless the plaintiff could show an actual possession, pedis possessio, he had no right to require the defendant to bring suit to try the title. A suit of that kind must be an action of ejectment, and can only be brought against a party in the actual possession. (R. C. 1855, p. 690, § 4-8.) A suit of ejectment presupposes some one in the actual possession. If there was no actual possession there would be no one to eject.

II. The title to the land could not be tried in this case. It was only a preliminary proceeding to ascertain if the defendant ought to bring a suit to try the title. The deeds offered by the plaintiff were incompetent upon the question before the court for any purpose whatever. If the title was in dispute and could be tried here, what would be the necessity of requiring another suit for that purpose? (R. C. 1855, p. 1241, § 62, 63.)

EWING, Judge, delivered the opinion of the court.

This was a proceeding under section 62, article 6, practice act, to require the defendant to show cause why he should not bring an action to try the title to certain real estate claimed by the plaintiff. The plaintiff alleges that he is in possession of the land and has a title in fee to the same; that defendant makes some claim to the land adverse to the plaintiff, and asks that he be summoned to show cause why he should not bring suit to try the title thereto.

The defendant answered denying the possession and title of plaintiff, and alleging title in fee in himself, and that since 1839...