Beiler v. Devoll

40 Mo. App. 251 | Mo. Ct. App. | 1890

Smith, P. J.

This was an action for unlawful detainer. The evidence of the plaintiff tended to show that the plaintiff, by an agreement in writing, rented the. defendant one hundred and sixty acres of land, for the years of 1886 and 1887, each year ending March 1; that the plaintiff made a verbal lease, to defendant, of the same land for the year 1888, expiring March 1, 1889 ; that plaintiff, more than three months preceding the expiration of said verbal lease, caused a notice to be served on the defendant to deliver the possession of the premises at the expiration of his lease. The service of notice was on defendant’s wife. The evidence of the defendant tended to show that, in August, 1888, the plaintiff verbally rented him, for the year 1889, twenty-five acres for wheat, thirty acres for oats and thirty acres for corn, the same being part of the one hundred and sixty acres which he had leased the three preceding years; that nothing was said in the verbal agreement, for the letting of said land to defendant, for the year 1888, when the next year should end. This suit was begun on the twenty-fourth of April, 1889, after the defendant had planted his corn and oats, the wheat having been sown during the preceding autumn. There was some other evidence which it is unnecessary to refer to here. The trial court instructed the jury that, under the pleading and evidence, the plaintiff was entitled to recover. The judgment being for plaintiff, defendant appealed.

I. The verbal lease of the land entered into, August 10, 1888, by which defendant’s last term was to begin in March, 1889, and end in March 1, 1890, was within the prohibitions of the statute of frauds. R. S. 1879, sec. 2513; Briar v. Robertson, 19 Mo. App. 66; Delano v. Montague, 4 Cush. 44; Browne on Statutes of Frauds, sec. 272. The defendant, therefore, was precluded from interposing the said verbal lease, as a defense, in bar of the plaintiff’s right of recovery of the possession of the premises: If the defendant had any right to the possession, it was as tenant from year to year. The uncontradicted evidence was, that the plaintiff gave the defendant notice to quit, which notice, if properly served, was sufficient, with the other evidence, to make out for plaintiff a prima facie case, entitling him to recover, unless there was countervailing evidence adduced by defendant, which there was not. The instruction given by the court was authorized by the evidence.

II. It seems well settled, that where personal service cannot be effected in the absence of a statute, requiring the service of notice, to quit to be made in a specified mode or manner, that it' will be sufficient, if left with the wife of the tenant. Taylor’s Landlord and Tenant, sec. 484; Wood on Landlord and Tenant, sec. 87. Section 3077, Revised Statutes, is silent as to the manner of the service of the notice therein required, but we think the service on the wife is sufficient under it.-

III. There are some irregularities suggested in respect to the verdict. While such practice is not to be approved, still, inasmuch as the verdict seems to be for the right party, and for an amount not in excess of what the plaintiff was entitled to recover, we shall not reverse the judgment on that account. The judgment will be affirmed.

All concur.