179 Mo. 564 | Mo. | 1904
— This is an action in ejectment to recover possession of a small lot of ground in the northeast quarter of the northwest quarter of section 17, township twenty-eight, range thirty-two in Jasper county, described in the petition by metes and bounds.
The petition is in common form. The answer is a general denial. The case was tried before a jury-verdict and judgment for the defendant, and plaintiff appeals, assigning for error the instructions given and the admission of incompetent evidence for the defendant, and the refusal to give certain instructions for plaintiff. The respondent files no brief.
On the trial the defendant admitted that he was in possession of the premises, and that the plaintiff is the owner thereof, and sought to defeat a recovery on the ground that he was a tenant at will of tire plaintiff at the time suit was brought.
To support this defense evidence was introduced tending to prove that the aforesaid forty-acre tract was mining land within a mile of Webb City. That prior
“Webb City, Mo., May 9,1900.
“James Brown, Carterville:
“Dear Sir: — Tbe Center Creek Mining Company has employed me to obtain possession of its land occupied by you. If you desire to adjust tbe matter without litigation, please call at my office over Exchange Bank before tbe eleventh inst. and submit such proposition as you desire to make for that purpose.
“Tours truly,
“W. R. Robertson.”
Tbe defendant testified that be received tbe notice addressed to him, that as it gave him only one day’s time, be went to the office of Mr. Robertson as soon as he received it, wbicb be thinks was on Thursday, and as to the interview then bad between them, testified as follows:
“Q. Did you go to see him? A. I went as soon as I got tbe notice, and seen Mr. Robertson.
“Q. Tell tbe jury what conversation or arrangement you bad with Mr. Robertson? A. Well, tbe claim*567 was' $1 a month back rent for a year, and as I wasn’t living there the year before — I lived in the Indian Territory the year before — I didn’t feel justified in paying the'rent for the time I was in the Indian Territory, paying rent on a piece of ground here, so I told him so. ‘Well,’ then he said, ‘We will drop that' and we will just make it one dollar a month from the time you moved in. ’ I told him that would be all right, and I believe it amounted to $6, if I am not mistaken. From the time I moved in until the time I went to his office, that was. ‘Well,’ says he, ‘can yon pay it right now?’ and I told him, ‘No.’ I didn’t have the money, but I could pay it Monday morning, as we were paid late on Saturday night, after dark mostly. That I couldn’t make it until Monday morning. ‘Well,’ says he, ‘if you come here Monday morning before eight o ’clock and bring me the money it is all right, for at eight o ’clock I have got to go to court, and will not be here. ’ I told him I will be there faithfully eight o ’clock Monday morning. Friday I got notice that he had sued and I had to appear at Joplin court.”
He further testified that he did not return to the office of Mr. Robertson on the following Monday morning, or at any time thereafter, because on Friday he was served with process in this action. The day on which the notice was dated and mailed was Wednesday the ninth of May, 1900. The eleventh was the following Friday. The following Monday was May the fourteenth, and this suit was instituted on Wednesday the sixteenth of May. This is the substance of the pertinent evidence in the case.
The court refused an instruction asked by the plaintiff, that no tenancy at will had been proven in the case, and among others gave the following instructions for the defendant:
“5. The court instructs the jury that in order to constitute the defendant a tenant at will it is not necessary that the jury find that there was an express con*568 tract between the plaintiff and the defendant, or the person under whom the defendant claims, that he could occupy the premises in controversy as the tenant of the plaintiff, but the jury are instructed that an implied agreement to occupy would be sufficient and if the jury find from the evidence that the defendant occupied the premises in controversy - for the period of several months, and that the plaintiff knew of such occupancy and made no objection thereto, then from such facts, the jury may find that the defendant occupied the premises with plaintiff’s consent, as a tenant at will of the plaintiff.
“6. The court instructs the jury that if they find from the evidence in this case that during the time the defendant occupied the premises in controversy, the plaintiff by its officers or agents knew of such occupancy and made no objection thereat, and attempted to collect rent from the defendant, and that the plaintiff and defendant disagreed as to the amount of rent the defendant should pay for the use of such premises, then the jury would be authorized from such facts to find that the defendant occupied said premises with plaintiff’s consent and as a tenant of the plaintiff and if they so find, the verdict should be in favor of the defendant.
“7. The court instructs the jury that if they find from the evidence that the plaintiffs, by and through its agent, W. R. Robertson, agreed that the defendant might occupy the premises sued for if he would pay rent for the time he had occupied the same at the rate of one dollar per month, and also that he was to pay one dollar a month for the future rent of said premises, and that he was given until the following Monday to pay his rents and that said Robertson was authorized by plaintiff to make such agreement and that before said Monday this su.it was brought, the verdict should be in favor of the defendant.”
The law applicable to the facts of the case is stated by the textwriters. In 1 Taylor on Landlord and Ten
And in 18 Am. and Eng. Ency. Law (2 Ed.), p. 165, as follows: “If one enters upon the land of another without right, and not in subordination to the title of the owner, he is a mere trespasser and the relation of land-' lord and tenant is not created between such occupant and the owner so as to authorize either the former to claim the rights of a tenant or the latter to claim the rights of a landlord. After a person has entered upon land without right, the relation of landlord and tenant may, of course, subsequently arise by implication; and it has generally been held that such relation arises where the occupant admits the title of the owner of the land, and agrees to hold in subordination to his title. Still, mere negotiations between the occupant and the owner, which have no result and which do not amount to a recognition of the o.wner as landlord, will not create the relation of landlord and tenant.”
Applying these principles to the instructions given for the defendant on the evidence in this case, each of' them will he found to he erroneous. By number 5, the jury are told that from the mere occupancy of the premises by the defendant for several months, i. e. from
By the other two instructions a relation of landlord and tenant between the parties is predicated upon the negotiations testified to by the defendant between him and Mr. Robertson which might have resulted in a contract by which the defendant would have become a tenant of the plaintiff if he had appeared at the office of Mr. Robertson on the Monday morning following the interview, and performed the conditions agreed upon, but which resulted in nothing by reason of his failure to so appear, and perform those conditions, then or a any time thereafter, therefore no tenancy could be implied from those negotiations. Hence these .instructions are both erroneous. The first is further erroneous in that there was no evidence to sustain the hypothesis that the defendant and Robertson disagreed as to the amount of rent defendant should pay; on the contrary, the evidence of the defendant himself was positive as to their agreement as to amount and there was no evidence to the contrary. The other of these instructions is also erroneous in that there was no substantial evidence tending to prove that “the suit was brought after the