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(on some day to be stated) entered into such premises, and unlawfully withholds from the plaintiff the possession thereof, to his damage in any sum he may claim. And all pleadings and proceedings in the action are to be conducted as in other civil actions, except where it is otherwise prescribed by statute. (Gen. Stat. ch. 151, §§ 6, 7.)

To entitle the plaintiff to recover, it is made sufficient for him to show that, at the time of the commencement of the action, the defendant was in possession of the premises claimed, and that the plaintiff had such right to the possession thereof as is declared by the statute to be sufficient to maintain the action. (Gen. Stat. ch. 151, § 8.)

If the action is brought by a joint-tenant or tenant in common against his co-tenant, the plaintiff is required to show on the trial that the defendant actually ousted him, or did some act amounting 'to a total denial of his right as such co-tenant; and this in addition to the other facts which he is required to establish. (Gen. Stat. ch. 151, § 9.)

When there are two or more plaintiffs, any one or more may recover any interest they may be entitled to, in the same manner as if they had brought separate actions; and it will not be any objection to a recovery in such action that any one or several of the plaintiffs do not prove any interest in the premises claimed, but those entitled may have judgment, according to their rights, for the whole, or such part or portion as he, she or they might have recovered if they had brought separate actions. (Gen. Stat. ch. 151, § 10.)

When, in any action for the recovery of the possession of premises, any lands shall be claimed by virtue of a location, in lieu of other lands injured by earthquakes, the certificate of new location granted by the recorder of land titles, and the patent used in consequence, will be only prima facie evidence of title in the grantee therein named; and it is made lawful in such case for the adverse party to rebut such evidence, by proof that the grantee in such certificate or patent named was not, at the time the same or either of them issued, the owner of the injured lands in lieu of which the said certificate or patent issued; and the title to the land located by virtue of such certificate or patent will be determined according to the rights of the parties to the land, as located by virtue thereof. (Gen. Stat. ch. 151, §§ 11, 12.)

If the plaintiff prevail in the action he may recover damages for all waste and injury, and, by way of damages, the rents and profits down to the time of assessing the same, or to the time of the expiration of the plaintiff's title, under the following limitations: First, when it shall not be shown on the trial that the defendant had knowledge of the plaintiff's claim prior to the commencement of the action, such recovery must be only from the time of the commencement of the action; second, when it shall be shown on the trial that the defendant had knowledge of the plaintiff's claim prior to the commencement of the action, and that such knowledge came to the defendant within five years next preceding the commencement of the action, such recovery will be from the time that such knowledge came to the defendant; third, when it shall be shown on the trial that knowledge of the plaintiff's claim came to the defendant more than five years prior to the commencement of the action, such recovery will only be for the term of five years next preceding the commencement of the action. (Gen. Stat. ch. 151, § 13.)

If the right of the plaintiff to the possession of the premises expire after the commencement of the suit, and before the trial, the verdict must be returned according to the fact, and judgment will be entered only for the damages and costs. If the plaintiff prevail in his action, and it appear in evidence that the right of the plaintiff to the possession is unexpired, the jury must find the monthly value of the rents and profits; in which last case the judgment will be for the recovery of the premises, the damages assessed and the accruing rents and profits, at the rate found by the jury, from the time of rendering the verdict until the possession of the premises is delivered to the plaintiff. And where the judgment for the plaintiff is both for the recovery of the possession and of damages, the plaintiff may have a writ of possession, which shall command the officer to whom directed to deliver to the plaintiff possession of the premises, and must also command him to levy and collect the damages and costs as in execution on judgment in other civil actions. And where the judgment for the plaintiff is only for damages and costs, execution may be had thereon, as on judgments in other civil actions. (Gen. Stat. ch. 151, §§ 14-18.)

No appeal will be allowed nor supersedeas granted on a writ of error in favor of the defendant, unless the recognizance be in a sum

and with security sufficient to secure the payment of all damages and accruing rents and profits, and with condition to stay waste, in addition to the other conditions required by law in such cases. (Gen. Stat. ch. 151, § 19.)

If a judgment or decree of dispossession shall be given in an action for the recovery of possession of premises, or in any real action in favor of a person having a better title thereto, against a person in the possession (held by himself or by his tenant) of any lands, tenements or hereditaments, such person may recover in a court of competent jurisdiction compensation for all improvements made by him in good faith on such lands, tenements or hereditaments, prior to his having had notice of such adverse title. (Gen. Stat. ch. 151, § 20.)

The plaintiff, in his petition, must set forth the nature of his title, the length of his possession, and the kind and value of the improvements made; and must also aver therein that he entered into the possession of the land, believing that he had good title thereto, and that he made the improvements specified in the petition in good faith, under the belief that he had good title to the land, and must be verified by his affidavit thereto annexed; and an injunction may be granted to stay the plaintiff from taking possession of the land until the value of the improvements is ascertained, or until the further order of the court. The plaintiff may, in his answer thereto, ask for leave to relinquish the land to the occupying claimant, and to recover the value thereof, aside from the improvements; and if the value of the improvements exceed the value of the land, aside from the improvements, the court may order that the occupying claimant shall, by a time to be specified in the order, take the land, and pay the ascertained value thereof to the plaintiff; and in default of such payment the plaintiff may take possession of the land, discharged of all claim of such occupying claimant. In all cases where the occupying claimant shall be adjudged to take the land and pay the value thereof, the plaintiff must, on payment of the money, make to the occupying claimant a conveyance thereof, with general warranty. And if the value of the land, aside from the improvements, exceed the value of the improvements, the court may, in its discretion, order either that the plaintiff shall pay for the improvements before he shall be allowed to take possession of the land, or that the land shall be divided between the occupying claimant and the plaintiff, accord

ing to their respective rights. But no partition can be ordered or adjudged if the plaintiff insists upon his right to retain the land. If the plaintiff shall give the occupying claimant notice, in writing, of his claim, and of the nature thereof, such notice will bar the occupying claimant, and all persons claiming from or through him, any compensation for improvements made after such notice. And no occupying claimant can recover compensation twice for his improvements; and in all cases where the occupying claimant shall be paid for his improvements by any person other than the proprietor of the better title, such person will be invested with the same rights, and have the same remedy for the recovery thereof as is given to the occupying claimant. (Gen. Stat. ch. 151, §§ 21-29.)

Executions or writs for the delivery of possession of real property may issue to the sheriff of the county where the same, or some part thereof, is situate, and the same will be governed, in all respects, by the rules governing executions in ordinary cases, so far as the same may be applicable. (Gen. Stat. ch. 151, § 32.)

The provisions of the statute in respect to actions concerning real property are given here in the order in which they stand upon the statute book, and it will be convenient to have the decisions of the court under the statute noted in the same or a similar order. In respect to making parties defendants in an action of ejectment, it has been held, that where the person from or through whom the defendant claims title to the premises has, on motion of the defendant, been made a co-defendant, the plaintiff is not entitled to dismiss the suit as to such co-defendant. (Hayden v. Stewart, 27 Mo. R. 286.) And it has been further held, that if the tenant be induced, by the false representations of a stranger claiming to be the owner of the demised premises, to attorn to him, the landlord defending with the tenant in ejectment will not be estopped from denying the title of such stranger. (Schultz v. Arnot, 33 Mo. R. 172.)

Where the plaintiff in an ejectment suit dies, the suit may be revived in the name of his heirs or devisees. And although under the new practice a party may be substituted on motion, yet. it can only be on the voluntary appearance of the adverse original party, or after the service upon such party of a scire facias. (Fine v. Gray, 19 Mo. R. 33.)

In a declaration in ejectment, the Missouri courts hold that the description of the premises contended for must be such as to

enable the jury to identify them with the description contained in the deeds upon which the plaintiff founds his claim; and other evidence is inadmissible to identify the premises described in the declaration with those described in the deed. (Newman v. Lawless, 6 Mo. R. 279.) And it is also held that the statute of Missouri regulating ejectments requires the plaintiff to allege in his declaration that he is legally entitled to the possession of the premises claimed; and, where the declaration simply charged that the plaintiff was legally entitled to the premises, it was held that it was bad, even after verdict, the avowal in the declaration being construed to be that the plaintiff was the legal owner of the land; and, for aught was charged, that might be true, and the plaintiff have no right to the possession. (Jamison v. Smith, 4 Mo. R. 202.)

In an action of ejectment the issue to be tried is the plaintiff's right to the possession of the premises sued for, and upon the trial of the general issue the defendant may avail himself of a defense that the plaintiff had not the present right of possession. (Carter v. Scaggs, 38 Mo. R. 302.)

Law and equity being now blended by the practice in Missouri, an equitable title arising out of a contract for the sale of land is a defense to an action of ejectment instituted to recover possession of the land. Possession of land under a contract of sale and payment of the purchase-money is held to be a good defense to an action brought by the alienor for the possession. (Tibeau v. Tibeau, 19 Mo. R. 78.) But it has been held that, where a patent was obtained under such circumstances as would make the grantee in it a trustee for another, such circumstances must be set up in the answer to an action for the recovery of the possession of the land with the same particularity that would be necessary in a bill in chancery. (Carman v. Johnson, 20 Mo. R. 108. And vide Harris v. Vinyard, 42 ib. 568.)

It is held that the rule of the common law, that the defendant in an action of ejectment may show an outstanding title in a third person to defeat the suit of the plaintiff, is not changed by the Missouri statute regulating the action of ejectment. (Gurno v. Jarvis, 6 Mo. R. 330.) But, in order that a defendant may defeat a recovery in ejectment by showing an outstanding title in a third person, such outstanding title must be a present subsisting and operative title, and such an one as the owner could recover on if

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