Alexander v. Westcott

| Mo. | Oct 15, 1865

Holmes, Judge,

delivered the opinion of the court.

This was a complaint before a justice of the peace by the landlords against their tenant for an unlawful detainer in holding over the leased premises after the expiration of the' tenancy, under the third section of Art. I. of the “ Act concerning forcible entries and detainers” (R. C. 1855, p. 787). The case was removed by certiorari to the St. Louis Land Court, and upon a trial had there judgment was rendered for the plaintiffs for a restitution of the premises and double damages, and double monthly value from date until restitution made.

The defendant made a motion to dismiss the complaint for duplicity and insufficiency under the statute, and for a variance between the complaint and the demand in writing. There was no substantial foundation for these objections. The complaint contained all the material allegations required by the third section of the act to constitute a holding over of the premises by the defendant, wilfully and without force, after the termination of the time for which they were let to him. (Warren v. Ritter, 11 Mo. 354" court="Mo." date_filed="1848-03-15" href="https://app.midpage.ai/document/warren-v-ritter--ritter-6612317?utm_source=webapp" opinion_id="6612317">11 Mo. 354; Ish v. Chilton, 26 Mo. 256" court="Mo." date_filed="1858-01-15" href="https://app.midpage.ai/document/ish-v-chilton-8000236?utm_source=webapp" opinion_id="8000236">26 Mo. 256.) The matter of variance between the complaint and the written demand was wholly immaterial, even if there had been any variance. The date of the notice was unimportant : the time of service is the time of demand. In this case, no demand in writing was at all necessary. (Young v. Smith, 28 Mo. 65" court="Mo." date_filed="1859-01-15" href="https://app.midpage.ai/document/young-v-smith-8000500?utm_source=webapp" opinion_id="8000500">28 Mo. 65; Andrae v. Henritz, 19 Mo. 310" court="Mo." date_filed="1854-01-15" href="https://app.midpage.ai/document/andrae-v-heinritz-7999252?utm_source=webapp" opinion_id="7999252">19 Mo. 310.)

The tenants had received the possession of the premises from the plaintiffs at tbe termination of the written lease the year before, and they had accepted the new tenancy and paid rent to the plaintiffs for another year. The plaintiffs were entitled to recover back this possession. The evidence showed that the defendant was in possession of the premises, occupying all but one room on the ground floor, which did not appear to have been in the occupancy or possession of any one else. We do not see but the verdict was fully sustained by the evidence. The matter of title and the ownership of the improvements were not a proper subject of inquiry in this action. (Stone v. Malot, 7 Mo. 158.) We think the instructions asked for by defendant were properly refused. Double damages may be awarded in such cases. (R. C. 1855, p. 1012, § 9; Ish v. Chilton, 26 Mo. 256.)

Judgment affirmed.

Judge Wagner concurs; Judge Lovelace absent.