Berry v. Fortney , 81 Mo. App. 284 ( 1899 )

SMITH, P. J.

Action of forcible entry and detainer. There was a trial by the court without the intervention of a jury. There was a special finding of facts followed by a statement of the conclusions of law deduced therefrom. The plaintiff had judgment and the defendants appealed. There appears to be no.serious conflict in the evidence. The defendants’ contention here is, that the evidence does not support the special finding.

It is disclosed that the plaintiff and the defendant, Mrs. R. A. Fortney, are brother and sister, and that eight or ten years before the institution of this action, by the partition of their father’s real estate, the plaintiff acquired the title to the southwest quarter of the northwest quarter of section 36, township 48, range 13 — which is the land described in the plaintiff’s complaint — and the defendant acquired that to the northwest quarter of the southwest quarter in feaid section, township and range. A reference to the following map, which, in the main, is in aecord with the evidence, will facilitate a correct understanding of the allusions we shall presently make:

Eor about forty years a worm fence bad stood on tbe line D E. ' Tbe line A B is that running east and west and dividing tbe lands of plaintiff and defendant, hereinbefore described.- Tbe irregular strip bounded on tbe north by tbe line A B, on tbe east by that of B E, on tbe south by that of E D, and on tbe west by that, of D A, describes tbe land actually in dispute. Tbis strip bad for many years been in tbe peaceable possession of tbe plaintiff and inclosed by tbe same fence that inclosed tbe lands described in bis complaint. Tbe evidence tends to show that a few days prior to tbe institution of tbis action, the defendants threw down tbe old fence D E and erected a wire fence from A to B and thereby excluded said strip from the plaintiff’s inclosure and included it within their own.

If the strip, the right to the possession of which is in dispute, is a part of the quarter quarter section described in the complaint, then it is clear from all the evidence that the defendants were guilty in manner and form as charged in the complaint. Whether the possession of the plaintiff was of that continuous uninterrupted adverse character as to give him title is a question that does not arise in this action. But ¡the question, whether or not the strip in dispute is any part of that described in the complaint, does arise. The statute— section 5092 — -requires that in actions -of this kind the complaint shall specify the lands, tenements or other possessions forcibly -entered and detained. The question here is nor that of title, as the learned trial court appears to have supposed, but -of identity.

The county surveyor testified that he made a survey of the land both of the plaintiff and defendants, and that the dividing line between the same from east to west is that shown on the plat to be from A to 0 and that the land in dispute is south of that line and is not therefore included in the limits of the quarter quarter section described in the complaint. The testimony of this officer, we think, was perfectly competent to establish the boundaries and location of the -lands to which it relates. It is now very well settled in this sítate that in an action like this the recovery must be of land which may be identified in the complaint. Lamme v. Buse, 70 Mo. 163; Thiemann v. Meier, 25 Mo. App. 306. An officer armed with an execution issued on the judgment in this case could do no more than put the plaintiff in possession of the land described in the judgment, which is the same as that in the complaint. And since the strip of land shown by the evidence to have been forcibly entered and detained by the defendants is not embraced in the boundary lines of that described in the judgment, the officer could not dispossess the defendants without wrongfully transcending the authority conferred by the writ. It is undeniably true that the law required the recovery of the plaintiff to be limited to the land specified in his complaint. Lamme v. Buse, supra. None other could be recovered by him.

The evidence utterly fails to show that the defendants forcibly entered and detained the land described in the complaint, or any part .thereof; and therefore the special finding of the court and the conclusion of law deduced therefrom can not be upheld. The judgment must accordingly be reversed.

All concur.