7 Mo. App. 138 | Mo. Ct. App. | 1879
delivered the opinion of the court.
This is an action brought by the plaintiffs as administrators of the estate of Jane Doyle, widow of John Doyle, to recover certain sums as rent. In December, 1847, one Crickard executed a lease of land for twenty years from June 14, 1847, at a yearly rent, and of this lease the defendant became assignee, paying rent to his lessor, Crickard. This lease gave the lessee the right to remove buildings, on certain conditions. The defendant sublet portions of the premises, and, by himself and his tenants, dwelling-houses were erected on the land. For unexplained reasons, the legal
John Doyle died on September 9, 1867. The defendant became his executor, and filed an inventory containing a statement that this land was “ underlease to Joseph O’Neil, which expired June 14, 1867, and said O’Neil is holding over and is in possession.” Soon after the defendant took out these letters, he was by Crickard directed to, and did, pay one-half of the rent of this property to Doyle’s estate. In December, 1867, the plaintiffs’ intestate elected, under the statute, to take a child’s share in her late husband’s realty. The court below ruled that the plaintiffs were not entitled to recover.
It is contended that as Mrs. Doyle took, to the knowledge of the defendant, an absolute share in John Doyle’s real estate, the act of the defendant in retaining possession of this property was wrongful, and that he is liable to the plaintiffs for a share of the rents proportionate to Mrs. Doyle’s interest in the property. In the first place, it does not appear that at any time before this suit was brought John Doyle had any legal title to any interest in the land. After suit brought, a declaration, made in 1866, by which Crickard and Doyle acknowledged themselves to be owners
The plaintiffs’ position implies that the mere facts that a person is the owner of land, and known to be such to a person in possession, raise an obligation on the part of the latter to pay rent to the former. This position is unteiiable. It is from the covenant to pay rent that the obligation arises, and where the lessee holds over by consent, the obligation continues as before. Even in assumpsit for use and occupation, by which, not rent, which is here sued for, but a reasonable sum for use is sought, the relation of landlord and tenant must exist. Slight evidence, it is true, — as, a permissive holding, —may estáblish this relation, but where the facts negative it, the action does not lie. Quackenboss v. Lansing, 6 Johns. 49; Bancroft v. Wardwell, 13 Johns. 488; Little v. Pearson, 7 Pick. 301. Where a tenant has come in under a landlord, pays rent to him, and there is no divestiture, the same tenancy continues that was created by the original demise, and a change in the ownership of the land does not enable the new owner to sue for rent accruing during the period of his ownership. Balls v. Westwood, 2 Camp. 11, and note; Cripps v. Blank, 9 Dow. & Ry. 481; Tew v. Jones, 13 Mee. & W. 12.
Here, the legal title wandered about, but was in Crickard possibly in 1866, certainly in 1869. The defendant was not liable to the person who happened to own the land. The defendant was lessee under Crickard, and the holding under Crickard was never divested. We need not inquire if any interference on the part of the Doyles could have availed anything, for there was no attempt on the part of Doyle or his widow to interfere with the existing relation of landlord and tenant; nor did the defendant, in obeying Crickard’s direction as to one-half of the rent, recognize Mrs. Doyle in Crickard’s place. The point made by the plaintiffs is that the defendant did not attorn to Mrs. Doyle, and this only serves to show more plainly that they have no case.
The judgment is affirmed.