Whitener v. Ward

• Citation: 242 S.W. 991
• Decision Date: 06 June 1922
• Docket Number: No. 17303.,17303.
• Parties: WHITENER et al. v. WARD et al.
• Court: Court of Appeal of Missouri (US)

242 S.W. 991

WHITENER et al. v. WARD et al.

No. 17303.

St. Louis Court of Appeals. Missouri.

June 6, 1922.

Appeal from Court of Common Pleas, Cape Girardeau County; Almon Ing, Judge.

"Not to be officially published."

Trespass by C. L. Whitener and others against Hamp Ward and others. Judgment for defendants on directed verdict, and plaintiffs appeal. Affirmed.

C. P. Damron and E. D. Anthony, both of Fredericktown, for appellants.

Davis & Davis, of Fredericktown, for respondents.

NIPPER, C.

This is an action for damages In trespass. Plaintiffs were purchasers at a partition sale, and it is alleged defendants were tenants of the parties to the partition suit.

The petition alleges that, on the ______ day of November, 1919, plaintiffs were the owners of and in possession of the land in question, known as the Buckner farm, of which there were 45 acres of cornstalk pasture, and 20 acres of wheat stubble, which property belonged to plaintiffs at all times after said date. It is alleged that, on or about the 1st day of December, 1919, the defendants wrongfully, and without leave, took possession of a portion of this farm, amounting to about 65 acres of land, and used the same by putting on said land a large number of cattle, against the protest of plaintiffs, and kept them there for about 30 days, or until the 1st day of January, 1920, during which time it was alleged the injury to the premises occurred. Plaintiffs seek damages in the sum of $150.

Defendants, by answer, deny that plaintiffs were the owners and in possession of the premises, and alleged that, prior to the time mentioned in plaintiffs' petition, defendants entered into the possession of said premises under a rental contract with the owners, giving them the right of possession until the 1st day of January, 1920, with the right to pasture the premises described in plaintiffs' petition; and alleging further that defendants knew of such possession. The reply denied specifically the allegations of the answer.

Upon a trial before the court and jury, the court gave a peremptory instruction to find for defendants, and plaintiffs appeal.

Plaintiffs, over the objections and exceptions of defendants, introduced in evidence a decree in partition, made at the September term, 1919, of the circuit court of Madison county, Mo., in which the lands in question were partitioned.

John A. Chapman, sheriff at the time of the partition sale, testified that he advertised the property, and sold the same at public sale on the 3d day of November, 1919, and the plaintiffs purchased the property described in the decree for the sum of $30,100, and paid all of the purchase money except $5,000, for which they gave their note. Out of the proceeds of this sale, the sheriff, in accordance with the decree, paid the costs of the suit and divided the remainder of the 25 per cent. of the purchase money among the heirs, and issued a certificate of purchase to the plaintiffs. This certificate of sale was introduced in evidence, as well as the notice of sale and proof of publication thereof.

Plaintiff Whitener testified that, on the second day after the sale, he went over the premises to examine the same. It appears from his evidence that, after this purchase, the defendants put 25 or 30 head of live stock on a portion of the stalk land and stubble fields, along in December, after he had refused defendants' request to pasture their cattle. He stated that most of the corn had been gathered on the day of the sale; that he did not know defendants had any crops there, but he did know that somebody cultivated it, and, on the day of the sale, he learned that Ward had raised a corn crop, and that a part of it had not been gathered. He testified that Ward remained in possession, after putting his cattle in and pasturing the same, over his objection, until the 31st day of December, 1919. Announcement was made at the sale that the purchaser could have possession at once, with the exception that a Mr. Buckner would retain possession of the house until January 1, 1920, with the right to gather corn and sow some wheat.

It clearly appears from the evidence that plaintiffs were not in actual...