Gooch v. Hollan

Philips, P. J. I. This cause will have to be remanded for further trial, for the error of the court in directing the jury to return a verdict for the plaintiffs. Such an instruction was disapproved of in the parallel case of DeGraw v. Prior, 53 Mo. 314, even where the court tried the case without the intervention of a jury. No one would question, I presume, that it would have been error in the court had it, at the conclusion of the plaintiffs’ evidence, directed the jury to find for the plaintiffs. There was certainly nothing in the defendant’s evidence which authorizes the court to take this course. After the defendant’s evidence comes in the whole case must then go to the jury. Johnson v. Murray, 72 Mo. 280; Carson v. Porter, 22 Mo. App. 184; Samuel v. Potter, 28 Mo. App. 365. II. As the case is to go back for retrial, it is proper to pass upon certain questions raised by the appellant. There was no error in admitting in evidence the lease from plaintiffs to Heck. It was an act of possession by the plaintiffs, and tended to prove their prior possession within three years next before the action, which is always permissible in this action. The deed from Warner to Mrs. Gooch, we do not perceive the propriety of introducing in evidence, as the title is not involved in this action. III. The court did not err in excluding the record of the judgment in the unlawful detainer action between plaintiffs-and Heck, without further proof. On its face it was res inter alios acta. The defendant here showed no privity between him and Heck. He did not claim, that he entered under Heck, but under Botts. Had he made further proof, tending to show that in that action Heck asserted possession under Botts, and that Botts actively defended such title or right through Heck, as by employing counsel, and managing the defense, and the like, as such landlord, that would have constituted Botts, though not a nominal party to the record, yet a [455] party in fact, so as to enable him to avail himself of such judgment. Strong v. Ins. Co., 62 Mo. 289; Wood v. Ensel, 63 Mo. 195; Landis v. Hamilton, 77 Mo. 555. In such case a judgment in favor of Botts’ tenant on the question of the right to the possession, no matter whether right or wrong, would be as conclusive in favor of Botts and those taking under him as for Heck, the nominal defendant. Valentine v. Mahony, 37 Cal. 389. “ The rule of evidence in respect of these matters is reciprocal, and where the judgment would be admissible in evidence against a party, when it was against the right under or through which he claims, it would be also admissible in his favor when the judgment was the other way.” Ib. 393. So if that judgment was an adjudication of the right of possession between plaintiffs and Heck, and Botts defended the same, as’ above indicated for his tenant, and the defendant Hollan took possession under Botts, on the going out of Heck, without in fact breaking plaintiffs’ close, that judgment would be admissible in evidence for defendant; especially after plaintiffs had introduced in evidence the fact of Heck’s prior possession and refusal to surrender. IV. Under the sheriff’s deed to Botts, the purchaser only acquired the interest of Joseph Gooch. The wife’s interest was not affected thereby; nor her right, through her husband, to maintain this possessory action. Mueller v. Kaessman, 84 Mo. 325. V. Nor did the court err in excluding the record of the proceedings and judgment in the equity suit of Botts vs. Nancy Gooch, et al. That suit pertained to the title of the property. In the action of unlawful detainer, or disseisin, the title is not involved. The matter of possession only is to be litigated. The real owner of property may be guilty of forcible entry, or unlawful detainer. The judgment of the circuit court is reversed and the cause remanded for further proceeding. All concur.