I.
Hall, J.The objection made to the sufficiency of the petition on the ground that it failed to allege that the plaintiff’s testator was in possession of the lands at the time of the alleged trespass is not well made. An express allegation of such fact was not necessary. The petition alleged that the testator was the owner of the lands at said time. Since the owner of lands is presumed to be in possession until the contrary appears, and since the owner has constructive possession when no one else has actual possession, the allegation of the petition was-equivalent to averring that the plaintiff ’ s testator had at the time alleged the legal estate in fee in said lands and the possession of them. Renshaw v. Lloyd, 50 Mo. 369. And, since the evidence all showed that said testator was the owner in fee-simple of the lands and that no one had the actual possession of them at the time of the acts complained of, said testator was, in contemplation of law, in possession, “his title drawing to it the possession.” Such constructive possession was sufficient. Brown v. Hartzell, 87 Mo. 568, and cases cited. The possession by the plaintiff’s testator was sufficiently pleaded and proved.
II.
The statute, on which this action was based, provides that the person offending it “ shall pay, to the party injured, treble the value of the thing so injured, broken, destroyed, or carried away, with costs.” Rev. Stat., sec. 3921. The point is made that the verdict did not specify *231the value of the thing taken, broken, etc., and that for that reason if was error for the court to treble the amount of the verdict. The court had told the jury to assess the plaintiff ’ s damages, if they found for him, “ at the value of the timber, trees or ties so cut down and carried away.” The amount of damages returned by the jury in their verdict mus t be presumed to have been in obedience to such instruction, and to be what the jury found was the value of the timber, trees, and ties cut down and carried away. Henry v. Lowe, 73 Mo. 100. The cases cited by defendant’s counsel in support of this point are not relevant, for the reason that in none of these cases was such an instruction given on the measure of damages.
The fact that the court entered judgment for the amount of the verdict upon its return is of no consequence. The court had control over such judgment during the term at which it was entered. The court had the power at any time during such term to have set aside the judgment if erroneous and to have entered in its stead the proper judgment. And that is all that the court did by sustaining the motion to treble the amount of the verdict and by entering the judgment accordingly. The effect of this new judgment was to set aside the first judgment. .
III.
The point is made that the evidence failed to show that the trespass was committed within three years before the death of the plaintiff’s testator. So far as this point concerns the necessity of proof that the trespass was committed in the testator’s life, it will have been observed from the statement of facts made by us that the point is based upon a mistake of fact, and that the necessary evidence was ample. So far as this point is based upon or refers to the statute of limitations, it is only necessary to remark that such statute was not pleaded as a defence. The answer was a general denial;
The judgment of the circuit court is affirmed.
All concur.