Stark v. Willetts , 8 Kan. 203 ( 1871 )

The opinion of the court was delivered by

Yalenhne, J.:

Jacob "Willetts, the defendant in error, commenced this action in the court below against Andrew Stark the plaintiff in error, for the purpose of recovering a certain piece of land withheld from him, as he claims, by Stark. The petition was in form an ordinary petition for the recovery of real property under article 24 of the code of civil procedure. The answer was as follows:

“ And now comes the said Andrew Stark, defendant, and for an answer to the petition of said Jacob Willetts says, that he the said Stark does not unlawfully keep him the said plaintiff out of the possession of said premises in his said petition demanded in manner and form as therein alleged, and of this he puts himself upon the country.”

Two trials were had in the court below. On the second trial, which was before a jury, evidence was introduced to show that the said Stark did keep the said Willetts out of the possession of said land, and also to show the amount of damages thereby sustained by Willetts; but not a particle of evidence was introduced or offered to be introduced by either party, tending to show that Stark had any right or interest in said land or any right of possession thereto. The court charged the jury among other things as follows:

“ Said plaintiff alleges that at the time of the commencement of this action, namely, October 13th, 1869, he was the owner in fee simple of said land, and entitled to the possession thereof; that said defendant Stark wrongfully kept said plaintiff out of the possession of said land, and had so kept him out of possession for one year’, to the damage of said-plaintiff; and this suit is brought to recover judgment for the possession of said land and said alleged damages.

“The defendant by his answer denies the keeping of the plaintiff out of the possession of the land. By thus taking issue upon and denying this single allegation in plaintiff’s petition, he admits that the plaintiff was at the commencement of this action the owner of the land, and entitled to the possession thereof, and leaves for you to decide as the main issue, only the following questions: First, Did the defendant at the time of the commencement of this suit kee]3 the plaintiff out of the possession of said land? Second, II he did, what damages did the plaintiff sustain from such withholding from him of said land by said defendant?”

The verdict of the jury was as follows: “We the jury find that the defendant does unlawfully keep said plaintiff out of the possession of said premises in manner and form as said plaintiff hath in his said petition declared, and we assess the damages of the said plaintiff by reason of the unlawful withholding thereof at the sum of $25.00.”

In this court the defendant below assigns in his petition in error numerous errors of the court below; but afterwards in his brief he abandons all but one of them, and that one we shall now proceed to consider. He says in his brief that “ The court instructed the jury that this answer was a mere disclaimer; that it admitted the plaintiff’s title and right of' possession. This was clearly wrong.” Whether this charge was wrong in the abstract we do not thint we are called upon to decide. It was certainly not wrong for this case as the pleadings and the evidence then stood. Under the pleadings it is clear beyond all doubt that the plaintiff’s title to the land was admitted; and title always presumptively draws to it the right of possession. Under the pleadings the defendant admitted conclusively that the title to the land was in the plaintiff, and by that admission he admitted at least rima facie that the plaintiff had the right of possession. Whether the defendant had the right under the pleadings to introduce evidence to show that, notwithstanding this j'prima facie presumption that the plaintiff had the right of possession to said land, still the plaintiff had no such right, we are not called upon to decide, for, as we have before said, no such evidence was introduced or offered to be introduced. The presumption of the plaintiff’s right of possession remained till the close of the trial, and the court had the right to tell the jury so. Under the pleadings and the evidence the jury had only the two questions to decide which the court told them they had to decide.

Eor these reasons, even if the court below misconstrued the defendant’s answer, and we are unable now to say that it did, still the said charge was not erroneous, for such misconstruction could not in the least affect the substantial rights of the defendant. The judgment is affirmed.

Kingman, O. J., concurring. Brewer, J., not sitting in the case.