Anderson v. Chicago, Rock Island & Pacific Railway Co. , 128 Mo. App. 175 ( 1908 )

BLAND, P. J.

(after stating the facts.) — The uncontradicted evidence is that neither plaintiff or any one for him was in actual possession of the premises from the time they were vacated by Whalen, prior to March 10, 1906. The evidence shows that Whalen vacated the premises on February 15, 1906, and surrendered possession to the owner who, in the same month, deeded the premises to the defendant companies. Defendants at the time had employed a wrecking company to wreck the buildings on their depot site, including the buildings on the premises in question. The evidence show's this company took possession of the premises and kept men on duty day and night-guarding them. The lease provided that for the nonpayment of rent the owner might declare the lease for feited. Under this stipulation the owner declared the lease forfeited and notified plaintiff of that fact, so that not only was plaintiff’s right to possession denied, but possession adverse to his claim was also acquired by the' owner, which adverse possession, according to the evidence, was transmitted to defendants. In these circumstances, plaintiff did not gain actual possession of the premises by the acts done by Haughton and Gerike in his name and as his agents. An owner in actual possession of his house cannot be deprived of that possession by an adverse claimant, who, finding the owner absent and the door open, merely closes and fastens the door and posts a notice that he has taken possession; if such wrere the law then the retention of possession of real property would be put to hazard every time the owner might be temporarily absent, and his bodily possession would be indispensable to maintain and secure the possession of his premises against an adverse claimant. As plaintiff was not in the actual possession of the premises, he cannot maintain this action. [Armstrong v. Hendrick, 67 Mo. l. c. 548; O’Mara v. St. Louis Transit Co., 102 Mo. App. l. c. 208, 76 S. W. 680.]

The judgment is affirmed.

All concur.