State ex rel. Festor v. Staed

Missouri Court of Appeals

State ex rel. Festor v. Staed

64 Mo. App. 453, 1896 Mo. App. LEXIS 311

DecidedJanuary 7, 1896

StatusPublished

This text of 64 Mo. App. 453 (State ex rel. Festor v. Staed) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Festor v. Staed, 64 Mo. App. 453, 1896 Mo. App. LEXIS 311 (Mo. Ct. App. 1896).

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Opinions

Bond, J.

Relators were awarded a writ of restitution in an action against Anton Meglitsch and George Meglitsch for an undivided four fifths of certain city property, the remaining one fifth of said property being vested in said George Meglitsch, an infant four years of age and the son of Anton Meglitsch. Relators sued the defendant on his official bond as sheriff for failure ~to execute said writ of possession and for false return [454]*454thereof. Defendant answered that he offered to deliver to relators the possession of an undivided four fifths of the real estate described in the writ, which they declined to receive, wherefore he made return of said writ accordingly. The reply was a general denial. A jury being" waived, the cause was submitted to the court. The testimony given for relators tended to show that they demanded that the defendant sheriff should oust Anton Meglitsch from any possession of the property and put the same in possession of relators, not, however, so as to disturb the possession of the said infant son of Anton Meglitsch; that the sheriff refused to comply with such demand, saying all he would do would be to deliver relators possession of four fifths of the property.

The testimony for the defendant tends to show that his deputy sheriff took one of the relators to the premises and put him in possession of four fifths thereof, and that said relator for himself and others refused to accept such possession as a compliance with the command of the writ. The court found for relators and gave judgment for the penalty of the bond, and assessed the damages at $240.42. Defendants appealed, and assign for error the refusal by the court of the following declarations of law: • '

“The court declares the law to be that it was not-' the duty of the sheriff to eject Anton Meglitsch from the property set out in the execution as long as he-remained peaceably upon the same, caring for and protecting his minor child, George Meglitsch, who was entitled to an undivided one fifth, and so long as he. did not disturb the possession of the plaintiffs in their possession of an undivided four fifths of the property.

“The court declares the law to be that, under the execution number 91, October term, 1893, it was the duty of the sheriff to put the plaintiffs in said execution in possession of an undivided four fifths of the property [455]*455therein specified, leaving in possession of an undivided one fifth George Meglitsch, one of the defendants in said execution. And the court further- declares the law to be that the said George Meglitsch, being an infant of tender years, to wit, of the age of about four years, was entitled to the possession of an undivided one fifth of said property and to the presence of his only living parent, his father, to care for him and protect him, and also to the presence, if need be, of a proper nurse to watch over him, and to guard him, and that the father of said child had the right to be in and upon said premises, caring for and protecting his said child, so long as he did not interfere with the possession of the plaintiffs in said execution to an undivided four fifths of said property.”

The extent to which a tenant in common can recover possession of land in an action against a stranger has been ruled differently in other states. In most of these it seems to be generally held that a tenant in common is, against every person but his cotenant, entitled to the possession of every part of the common lands. Freeman on Cotenancy, section 343. In others, however, this doctrine is not maintained, but it is held that the right of possession, being dependent on title — and that being several — can not be enforced beyond the moity of the plaintiff. This is the rule in Missouri. Gray v. Givens, 26 Mo. 303; Collins v. Warren, 29 Mo. 241; Buttrick v. Tilton, 141 Mass. loc. cit. 96, affirming Dewey v. Brown, 2 Pick. 387; Dawson v. Mills, 32 Pa. St. 302. The declarations of law requested by defendants were sustained by the evidence, and were in consonance with the rule on this subject adopted in this state. Their refusal was, therefore, error for which the judgment in this case should be reversed and the cause remanded, and it is so ordered. In this view Judge Biggs concurs. Judge Rombauee, however, is of [456]*456opinion that the decision rests upon a misconception of the decision of Gray v. Givens, supra, and hence is opposed to that decision. It is, therefore, ordered that the cause be certified to the supreme court for final disposition.

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Bond, J.

Relators were awarded a writ of restitution in an action against Anton Meglitsch and George Meglitsch for an undivided four fifths of certain city property, the remaining one fifth of said property being vested in said George Meglitsch, an infant four years of age and the son of Anton Meglitsch. Relators sued the defendant on his official bond as sheriff for failure ~to execute said writ of possession and for false return [454]*454thereof. Defendant answered that he offered to deliver to relators the possession of an undivided four fifths of the real estate described in the writ, which they declined to receive, wherefore he made return of said writ accordingly. The reply was a general denial. A jury being" waived, the cause was submitted to the court. The testimony given for relators tended to show that they demanded that the defendant sheriff should oust Anton Meglitsch from any possession of the property and put the same in possession of relators, not, however, so as to disturb the possession of the said infant son of Anton Meglitsch; that the sheriff refused to comply with such demand, saying all he would do would be to deliver relators possession of four fifths of the property.

The testimony for the defendant tends to show that his deputy sheriff took one of the relators to the premises and put him in possession of four fifths thereof, and that said relator for himself and others refused to accept such possession as a compliance with the command of the writ. The court found for relators and gave judgment for the penalty of the bond, and assessed the damages at $240.42. Defendants appealed, and assign for error the refusal by the court of the following declarations of law: • '

“The court declares the law to be that it was not-' the duty of the sheriff to eject Anton Meglitsch from the property set out in the execution as long as he-remained peaceably upon the same, caring for and protecting his minor child, George Meglitsch, who was entitled to an undivided one fifth, and so long as he. did not disturb the possession of the plaintiffs in their possession of an undivided four fifths of the property.

“The court declares the law to be that, under the execution number 91, October term, 1893, it was the duty of the sheriff to put the plaintiffs in said execution in possession of an undivided four fifths of the property [455]*455therein specified, leaving in possession of an undivided one fifth George Meglitsch, one of the defendants in said execution. And the court further- declares the law to be that the said George Meglitsch, being an infant of tender years, to wit, of the age of about four years, was entitled to the possession of an undivided one fifth of said property and to the presence of his only living parent, his father, to care for him and protect him, and also to the presence, if need be, of a proper nurse to watch over him, and to guard him, and that the father of said child had the right to be in and upon said premises, caring for and protecting his said child, so long as he did not interfere with the possession of the plaintiffs in said execution to an undivided four fifths of said property.”

The extent to which a tenant in common can recover possession of land in an action against a stranger has been ruled differently in other states. In most of these it seems to be generally held that a tenant in common is, against every person but his cotenant, entitled to the possession of every part of the common lands. Freeman on Cotenancy, section 343. In others, however, this doctrine is not maintained, but it is held that the right of possession, being dependent on title — and that being several — can not be enforced beyond the moity of the plaintiff. This is the rule in Missouri. Gray v. Givens, 26 Mo. 303; Collins v. Warren, 29 Mo. 241; Buttrick v. Tilton, 141 Mass. loc. cit. 96, affirming Dewey v. Brown, 2 Pick. 387; Dawson v. Mills, 32 Pa. St. 302. The declarations of law requested by defendants were sustained by the evidence, and were in consonance with the rule on this subject adopted in this state. Their refusal was, therefore, error for which the judgment in this case should be reversed and the cause remanded, and it is so ordered. In this view Judge Biggs concurs. Judge Rombauee, however, is of [456]*456opinion that the decision rests upon a misconception of the decision of Gray v. Givens, supra, and hence is opposed to that decision. It is, therefore, ordered that the cause be certified to the supreme court for final disposition.

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64 Mo. App. 453, 1896 Mo. App. LEXIS 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-festor-v-staed-moctapp-1896.

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