Chaffin v. Clark

Rombauer, P. J., delivered the opinion of the court. This action is a statutory proceeding to quiet title. R. S., sec. 3562. The case was tried by the court on the same evidence as the one of the same plaintiffs against Brockmeyer, decided at the present term {ante, p. 92). No instructions were asked or given, but judgment rendered in favor of defendant Clark on the evidence. The only question of law raised on the record before us is, whether the evidence required the trial court to find, as a matter of law, that the plaintiffs were in actual possession of the property, since it is conceded that such possession is necessary to maintain this action. Von Phul v. Penn, 31 Mo. 335 ; Dyer v. Baumeister, 87 Mo. 134. As we have already decided in the Brockmeyer ease tha¡t the finding of the court that plaintiffs were hot in possession of the property, either in person or by tenant, was not erroneous, it results that the judgment in this case, based upon that fact, must likewise' be affirmed. All the judges concurring, it is affirmed.