Leet v. Gratz, 92 Mo. App. 422 (1902)

Citation: Leet v. Gratz, 92 Mo. App. 422 (1902)
Parent Document: Leet v. Gratz, 92 Mo. App. 422 (1902)
Jurisdiction: Missouri (state)
Effective Date: 1902-02-18
Original Source: https://www.courtlistener.com/opinion/8296427/leet-v-gratz/ ↗

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Much is said by appellant’s counsel about the propriety of his client’s yielding to the judgment in the ejectment suit instead of resisting it, and of course it is commendable for a litigant to submit cheerfully to the decrees of the courts of the country; but what was done in this case was a futile attempt to acquire an outstanding title after a judgment in ejectment had established its paramountcy, instead of the plaintiff either yielding to it or being evicted by it; and by no principle of law with which we are familiar is he entitled to recover what he paid out to obtain it, or to recover substantial damages so far as the interest of the minor heirs is concerned, until he has been actually or constructively evicted. Merely continuing in possession after judgment in ejectment and an abortive attempt to extinguish the adverse title by consent of the holders of the latter or their curators, is not constructively equivalent to an ouster. In Home Life Ins. Co. v. Sherman, 46 N. Y. 370, it was said: “A judgment alone is insufficient; the posr session must be disturbed or yielded.” That was not done in the present case, and, hence, plaintiff can only recover substantial damages as to the interest of the minors if he acquired it.

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