Root v. Mead

58 Mo. App. 477, 1894 Mo. App. LEXIS 344

Opinion

Romeauer, P. J.

This is a statutory proceeding to quiet title. The petition makes the necessary statutory averments, and the answer admits that the defendants claim title to part of the premises, provided they lie in the. west half of the southeast quarter of section 14, township 29, range 32. The answer denies other allegations of the petition.

On the trial the plaintiffs gave evidence of a title in fee to the premises in themselves, and also evidence tending to show that they were in actual possession of them by their real estate agents, who claimed no interest in the premises. It also appeared that the plaintiffs were nonresidents of the state.

The court thereupon on its own motion declared the law to be as follows: “Possession of a nonresident by an agent, as the evidence in this case tends to show, is not such possession as is contemplated by law for quieting of titles under section 2092 of Revised Statutes '.1889.”

This position is untenable. Possession of the land by tbe plaintiff’s agent was the plaintiff’s actual possession. Rutherford v. Ullman, 42 Mo. 216. There is nothing in the statute which confines the remedy to residents of the state, nor could such a discrimination be upheld. Reno on Nonresidents, section 40. The law makes ample provision for actions of, ejectment against nonresident defendants. Revised Statutes, 1889, section 2022. Besides the statute, section 2093, Revised Statutes, 1889, expressly provides that, when the defendant does claim title, the court shall make such judgment or order respecting the bringing and prosecuting of such actions as may seem equitable and just. Hence the court has full power, if it deems it just and equitable, to make a conditional order requiring the defendants to bring an action, and requiring the plaintiffs to enter their personal appearance therein so as to save the cost of publication.

The judgment is reversed and the cause remanded.

All the judges concur.