157 Mo. 336 | Mo. | 1900
Ejectment for the south half of the northeast quarter of section 27, and the south half of the northwest quarter (except 10 acres off the west end of latter
The answer of defendant is the following: “Comes now the said defendant and for his answer to plaintiffs’ petition says that it is true that defendant, with his wife, Cora A. Roush, was and is in possession of the land and premises described in said petition, but avers that such possession was and is rightful and lawful.
“Further answering defendant denies each and every allegation in said petition contained, not above admitted to be true.
“Defendant further states that Edward Cunningham, one of the heirs of Jacob Cunningham, deceased, has not been made a party plaintiff and that he is a minor under the age of twenty-one years; and that the plaintiffs claim title and the right to recover as heirs at law of Jacob Cunningham, deceased.”
Cause tried before court, June term, 1895. Petition alleged plaintiffs entitled to possession on third day of March, 1895, and ouster occurred on next day thereafter. Admitted by defendant that Jacob Cunningham died seized and possessed of an absolute title in fee simple of, in ¿nd to the land in question, and that the deceased had no child or children or descendant of any child living at the time of his death, and that the plaintiffs are all his brothers and sisters and nephews and nieces living. Testimony was also introduced as to value of rents and profits.
Evidence was introduced on the part of defendant showing a letter of date November 6, 1892, by Jacob Cunningham to defendant and his wife, Cora, in which he stated that if defendant (who it seems lived in Colorado) would move on the land or farm in question, he would let defendant have it “for five years and may be longer.” This letter does not state upon what terms the place was to be let to defendant. There was other evidence to the effect that in January or
To another witness, Jacob Cunningham stated he had let defendant have the farm for five years; and to still another witness, Jacob Cunningham, stated he had let defendant have the farm for five years, and the latter was to get half. This was in 1893, it seems, and defendant had then moved on the farm. This was in substance, all the evidence.
At the June term, 1895, of court, the cause was by the court taken under advisement and continued until the next regular term thereof. At the December term, 1895, of court, cause was by the court continued under advisement until the next regular term of said court. At the June term, 1896, of court, the cause came on for further consideration by the court, and thereupon the defendant moved the court to declare the law that upon the evidence the plaintiffs were not entitled to recover; which the court refused, and to which action of the court in refusing to so declare the law the defendant then and there excepted at the time. The court then at same term of court, to-wit, June term, 1896, found for the plaintiffs against said defendant, Alonzo Roush, that they are entitled to the possession of the land and premises sued for.
The above facts are taken from the original bill of exceptions now before us which we have sent for in order to ascertain some matters in dispute between counsel. This original bill of exceptions shows, as above stated, that there
And there is nothing in the bill of exceptions to show that Oora, wife of defendant, ever had an answer filed in the cause, or ever had a trial or hearing on the issue raised by such answer, or that she ever withdrew such answer; nor does the record show any such answer, nor does the bill of exceptions show that any trial occurred except on the issues raised by the answer of the sole defendant Alonzo Eoush.
The declaration of law in the nature of a demurrer to the evidence, ashed by defendant, should have been given for these reasons: Although the letter already referred to, was insufficient under the statute of frauds, because of lacking the statement of the terms on which the farm was to be leased to Alonzo Eoush, and could not be pieced out by parol additions (Boyd v. Paul, 125 Mo. 9 and cases cited), yet, notwithstanding this, the verbal testimony was sufficient to show a good parol lease, and its terms, and such lease would operate as a tenancy from year to year (Kerr v. Clark, 19 Mo. 132; Ridgley v. Stillwell, 28 Mo. 400), and such tenancy could not be terminated except by notice to quit (Tarlotting v. Bokern, 95 Mo. 541).
The term of the tenancy of Alonzo Eoush being thus valid for the term of five years, would take effect when he took possession in the spring of 1893, and of course last until the spring of 1898; so that, plaintiffs were not entitled to the possession of the premises at the time they brought suit.
And the testimony adduced of a parol lease for five years was entirely competent to support the general denials of the answer. It was not necessary for defendant to plead that he was a tenant; the rule being that: “Where a cause of action which once existed has been determined by some
Here, the right of action in- plaintiffs “never existed,” and consequently, the fact of an existing tenancy on the part of defendant, did not need to be specifically pleaded.
Eor these reasons, judgment reversed and cause remanded.