Summary
holding that one of the two owners by tenancy in the entireties was able to maintain an action in replevin to reacquire property taken from the land
Summary of this case from Roberts Holdings, Inc. v. Becca's Barkery, Inc.Opinion
No. 6915.
December 4, 1950.
APPEAL FROM THE CIRCUIT COURT, McDONALD COUNTY, THOMAS JOHNSON, J.
J. T. Pinnell, of Pineville, Robert Stemmons, of Mount Vernon, for appellant.
Ruark Ruark, of Neosho, James Paul, of Pineville, for respondent.
This is the second appeal in this case. It was tried in McDonald County twice. The judgment for plaintiff before (respondent in this case) was reversed by this Court, and the cause remanded for another trial. Foulke v. McIntosh, 214 S.W.2d 735.
Like the first case, this was an action in replevin for fence wire and fence posts, alleged to have been removed by appellant from respondent's land, in Newton County, Missouri. On change of venue, the case was sent to and tried in McDonald County, an adjoining county in the same judicial circuit, and was tried by the successor of the judge who first tried the case.
The reversal and remanding before were entirely due to the insufficiency of respondent's evidence on the question of whether or not all of the fencing and fence posts, found in the possession of defendant (now appellant), came from respondent's land. In the former opinion, we held that, because plaintiff therein could not be positive that all of the property, replevined by him, was part of the fence on the lands described, the judgment in his favor for possession of all of such fencing and fence posts was erroneous.
Another survey of the land was made after the first trial and the surveyor testified in the present trial that all the indications of a previous fence were found by him to be inside of the 120 acres of land described in the petition. The identity of the fencing and fence posts was established by one Frank Roller, formerly in the employ of appellant, who removed such fencing and fence posts from the land and put them in appellant's possession.
The jury rendered an unanimous verdict for plaintiff, on October 11, 1949, and defendant has appealed. The case is thus before us again. The facts are well set out in 214 S.W.2d at pages 735 to 739, and will not again be as fully set out, as such facts are about the same.
From the last survey, said to have been made shortly before the case was tried the last time, even though such testimony was contradicted, the jury had the right to find that all of the barbed wire and fence posts, replevined by respondent from appellant, were removed by appellant, or at his direction, from the land described in the petition.
In the first paragraph of his Points and Authorities, appellant says that the jury should have been instructed to return a verdict for appellant. We do not find such an instruction among the instructions given to the jury or refused by the trial court; but do find that appellant, at the close of the evidence, moved the court to direct a verdict for defendant, for the reasons:
1. That plaintiff has failed to prove a case upon which relief can be granted, and,
2. That plaintiff has failed to prove that he is entitled to the possession of the property described in the petition.
The transcript shows that appellant's motion for a directed verdict was overruled. The motion for a new trial, filed by appellant on October 19, 1949, and overruled by the trial court, raised the contention that appellant was entitled to a directed verdict. In his motion for a new trial, appellant said:
"1. The court erred in refusing to direct a verdict for the defendant at the close of plaintiff's evidence.
"2. The court erred in refusing to direct a verdict for the defendant at the close of all of the evidence in the case."
We think this issue was sufficiently raised by the motion at the close of the evidence, and in the motion for new trial, and that it was unnecessary for defendant to go to the useless task of presenting to the trial court a formal instruction for a directed verdict, when the trial court had so recently refused to give such an instruction. This refusal raised the question of the sufficiency of the evidence in the case, and that question is now before us, on defendant's appeal, and is preserved for our consideration by the steps taken by appellant. The transcript shows the following direct testimony of the respondent himself, to wit:
"Q. And you are the owner of the land described as the North Half of the Southwest Quarter and the Southwest Quarter of the Southwest Quarter of Section 22, Township 27, Range 33, Newton County, Missouri?
"Mr. Stemmons: I object to that for the reason the record shows that he is not the owner of it.
"Q. Well, you and your wife then? A. Well, I owned a half interest by the judgment and my wife and I acquired a quitclaim deed to the other half interest.
"Q. You acquired by reason of this judgment, Plaintiff's Exhibit One, you acquired a half interest? A. That's correct.
"Q. Then you later got a deed — you and your wife — to the other half interest? A. That's right."
We have examined the record in the former case, and find that, while we then said, "There is no question but that at the time of the litigation, plaintiff and his wife owned the land," which was then and is now the truth, there was no issue in the former record that plaintiff therein was not entitled to recover, because his wife had an interest in the land at the time appellant removed therefrom fencing and fence posts.
What we then decided was the sufficiency of the proof made by plaintiff therein, when it appeared from the evidence of plaintiff himself, that part of the fencing and fence posts may have been taken from land, other than from the land described in the petition. The right of respondent in that case to institute and prosecute a replevin suit, without joining as plaintiff another person who had an interest in the land and therefore had an interest in such fencing and fence posts, was not before this Court. What we said in the former opinion about there being no question that plaintiff and his wife owned the land, was purely voluntary on our part and was not called for by the record then before us. We do not consider ourselves bound by such expression in the present case, because the ownership of the fencing and fence posts was not an issue, under the record in the former case.
In his brief in this Court, appellant says:
"Defendant's motions for a directed verdict in his favor should have been sustained for the following reasons:
"(A) One who is not the sole owner of chattels cannot sue in replevin to recover possession of them. All of the owners must join in the suit.
"(B) The right of action alleged to be in one, there is a fatal variance when the proof shows it to be in two or more."
Appellant cites three Missouri Appeals cases in support of this proposition. The first case is McCabe v. Black River Transportation Company, 131 Mo.App. 531, 110 S.W. 606. In that case the St. Louis Court of Appeals said: "Plaintiff's evidence showed he had never been in possession of any of the property described in his petition. It also showed that his claim on the property was based on an unpaid mortgage for $291, executed June 19, 1905, by one Stroud, who owned only an undivided eleven-twelfths interest in the barges."
There was no such relationship, as here. Respondent and his wife owned a half interest in the real estate. We do not dispute the rule that in replevin all ordinary persons must join as plaintiffs.
Appellant cites several cases on the proposition that, where the proof shows the title to the property is in more persons than the plaintiff, there is a fatal variance. This may be true, unless the evidence shows that the claimants have a common interest. In Upham Gordon v. Allen, 73 Mo.App. 224, loc. cit. 228, "The rule is elemental that in an action of replevin or its statutory substitute, an action for the recovery of the possession of specific personal property, where the issue raises, as here, the question of title, it devolves on the plaintiff to prove that at the time of the caption he had a general or special property in the goods taken and the right to the immediate and exclusive possession."
In that case none of the plaintiffs had more than an interest in the property, as mortgages. While the Kansas City Court of Appeals does say that there is a fatal variance, where the petition alleges the title to be in one, and the evidence shows that such title is in two persons, that Court did also say that, where the evidence shows the title to be in two persons, there is not a fatal variance "unless the defendant can in some way connect himself with such third person and claim under him." So the cases cited do not hold that such variance is fatal in all cases.
Respondent and his wife owned a half interest in the land together. They were tenants by the entirety. See Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295, 297, 161 A.L.R. 450. In that case the Supreme Court of Missouri said: "In this state, as at common law, a conveyance to husband and wife as joint grantees during coverture ordinarily creates a tenancy by the entireties."
See also, Peters v. Peters, 312 Mo. 609, 280 S.W. 424, 428, in which the Supreme Court of Missouri said: "It is true in this state, as at common law, that, where real property is conveyed to husband and wife, and there are no limiting words in the operative clauses of the deed, they take an estate by the entirety."
While respondent and his wife together had a quitclaim deed to a half interest in the land, described in the petition, there was no showing in the evidence that such quitclaim deed had any clause in it making them tenants in common.
As they were tenants by the entirety in the half interest in such land, the husband had the right to maintain an action in his own name to replevin property taken from such land. We must therefore overrule the contention of appellant that another, beside plaintiff, had an interest in the property alleged to have been removed from such land, sufficient to defeat replevin.
The second point made by appellant in his brief in this Court, is that the trial court committed error in admitting the alleged hearsay evidence of witness B. F. St. Clair. We have examined the testimony of such witness, and cannot say that any of his testimony was subject to the objection made by appellant. The witness was simply describing the plat made by surveyor Koelker, who preceded him on the witness stand.
In Cottonseed Delinting Corp. v. Roberts Brothers, Inc., Mo.Sup., 218 S.W.2d 592, cited by appellant, Judge Hyde was simply defining what amounted to hearsay evidence, and that case does not tend to prove that any of the testimony of witness St. Clair was hearsay.
A paragraph of appellant's brief is directed to claimed error in Instruction 4. We have examined such instruction, and, if we are right in our conclusion that respondent and his wife were tenants by the entirety, and not tenants in common, such instruction was not erroneous in leaving to the jury the power to determine the title to the premises described in the petition.
The judgment rendered on the verdict of the jury should be affirmed.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.