Wood v. Gregory

• Decision Date: 06 April 1942
• Docket Number: No. 6345.,6345.
• Citation: 163 S.W.2d 355
• Parties: WOOD v. GREGORY.
• Court: Missouri Court of Appeals

163 S.W.2d 355

WOOD v. GREGORY.

No. 6345.

Springfield Court of Appeals. Missouri.

April 6, 1942.

Rehearing Denied May 14, 1942.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

"Not to be reported in State Reports."

Action in ejectment by C. E. Wood against E. L. Gregory. From a judgment for the plaintiff, the defendant appealed to the Supreme Court which transferred the case to the Springfield Court of Appeals, 155 S.W.2d 168, 138 A.L.R. 142.

Affirmed.

Farrington & Curtis, of Springfield, and E. C. Curtis, of Hartville, for appellant.

BLAIR, Presiding Judge.

The appeal in this case was granted to the Supreme Court of Missouri in the apparent belief that title to real estate was involved. That court transferred the case to this court, holding that title to real estate was not involved. Wood v. Gregory, Mo.Sup., 155 S.W.2d 168, 138 A.L.R. 142. Reference to that opinion is made, as the facts stated therein seem to be well stated.

With the question of title to real estate settled in that opinion and our appellate jurisdiction determined, we will proceed to dispose of the other questions raised in appellant's brief. The case was argued here only by the appellant (defendant below) and respondent (plaintiff below) has not even favored us with a brief.

Part of defendant's answer prayed an injunction and asked other equitable relief, in addition to a general denial. As we understand it, there is no difference between the parties on the question of how defendant entered into possession of the premises in the first place, except that defendant contends that, under the original oral agreement with plaintiff, he was entititled to possession of the premises, without rental therefor, so long as he used the premises and the building erected by him thereon for the purpose of operating thereon a store business and that, if he ceased to do such business and vacated the premises, plaintiff would buy the building, if an agreement could then be reached for the purchase of such building by plaintiff, and that he continued to occupy the premises for such purpose until this suit was filed; while plaintiff contends that defendant was only to occupy the premises so long as plaintiff wished, and that plaintiff was under no obligation to buy the building when defendant vacated. There is no contention but that no rental was ever to be charged for the use of the premises.

The petition was filed September 20, 1939, and defendant had been in possession of the premises and occupied the same under some sort of oral agreement with the plaintiff since sometime in 1932, or about seven years in all at the time suit was filed. In his answer, defendant prayed that plaintiff be enjoined from interfering with defendant in such occupancy and stated that he had erected a building thereon at an expense of $500 and that plaintiff was and is estopped from prosecuting an action for possession of said premises and that, if the court found that plaintiff was entitled to such possession, plaintiff should pay defendant the sum of $1,500 as defendant's damages for the erection of said building, which defendant claimed could not be moved, and for destruction of the business, which defendant had built up on said premises.

A large part of defendant's answer was attacked by plaintiff's motion to strike out; but, as such motion was overruled, and plaintiff did not appeal, we need not refer again to such motion. Thereupon, plaintiff filed his reply in the nature of a general denial. By such pleading, the conditions of defendant's entry upon and occupancy of said premises were put in issue. By the judgment and decree entered February 28, 1940, the circuit court found and held that defendant was then a trespasser upon said premises, with the right in defendant to remove the building located on said premises on or before June 10, 1940, and with costs to plaintiff, but allowed no sums whatever as damages for the retention of said premises, and the trial court made no order respecting future rents and profits.

If this finding was justified, all the elaborate citation of cases by appellant in his brief need not be noticed or considered. Those cases are all based on facts other than those found by the chancellor. After unsuccessful motion for new trial, an appeal was granted to defendant to the Supreme Court, evidently on the theory that the title to real estate was involved and, as stated, that court has held that such title was not involved and has transferred the case to ...