Collier v. Green

83 Mo. App. 166, 1900 Mo. App. LEXIS 144

• Court: Missouri Court of Appeals
• Decided: February 13, 1900
• Status: Published

Opinion

BOND, J.

Plaintiff brought an action of forcible -entry and detainer for 145 acres of land in Audrain county, Missouri, which was removed by defendant from the justice to the circuit court by certiorari. On a trial there defendant had judgment, from which plaintiff appealed.

The undisputed facts are: That plaintiff leased premises to the assignors of defendant for a term ending March, 1899, for a rental evidenced by a note for $75 and a certain part of the future crops; that in October, 1898, the tenants sold their interest in the ungathered crops to defendant and by written authority put him in possession as their agent; that he entered upon the place under this authority, gathered the 'crops, delivered over to plaintiff the portion .coming to him, and retained the remainder for himself. Plaintiff testified -that when his tenants had decided to leave the place, he'appeared thez*e and got a pzemise from the wife of one of them to surrender the key to him, and that he demanded and intended to take possession of the property; that he did some repairs on the premises; that he did not get the key, but it was delivered by the tenants to defendant, who 'thereupon went into possession of the premises, and was occupying them when this suit was brought.

Upon these facts the only mistake on the part of the trial court was in submitting 1» the jury the question of possession of plaintiff at the 'time of defendant’s entry. Plaintiff did not then have such a possession as is necessary to maintain azz action of forcible entry and detainer. The actual holding was then in his lessees, and they turned it over to their agent, defendant. To maintain an action like the present it is indispensable that the plaintiff should be in the actual possession of the property sought to be recovered and should be dispossessed by actual or constructive violence. Armstrong v. Hendrick, 67 Mo. 542. This is not an action for either of the two kinds of unlawful detainer (Anderson v. McClure, 57 Mo. App. loc. cit. 96), but is shown by the petitiozz to be predicated solely on the statute defining forcible entry and detainer, the essence of which is the use of force, actual or constructive in the act of dispossession. R. S. 1899, sec. 3320. As the tenants of plaintiff never surrendered to him, and as their lease had not expired when they appointed the defendant their agent to comply with the covenants imposed upon them, the plaintiff did not have such a possession as would 'have sustained unlawful detainer, even if his suit-had been brought in that form. May v. Luckett, 48 Mo. 472; Kingman v. Abington, 56 Mo. 46. Clearly the judgment in this case was' for the right party, it is therefore affirmed.

All concur. Judge Biggs in result.