34 Mo. 303 | Mo. | 1863
delivered the opinion of the court.
This is an action for unlawful detainer. The complaint showed that the plaintiff, on the 21st of June, 1849,'leased to one Brown, for the term of ten years from that date, a lot of ground in the city of St. Louis ; that the defendant occupied a part of said premises under said lease and lessee; that the term granted by said lease had fully expired by lapse of time; that the lease contained a covenant by the lessee to erect certain buildings on the land, and that they had not been erected; that the lease provided that any failure by the lessee to perform a covenant should create a forfeiture of the lease, of which notice might be given the lessee or his legal representatives, and that such notice had been given the defendant; and that the plaintiff had in writing demanded of the defendant the possession of the premises, which he refused.
Then followed this provision :
“ This lease may be renewed for ten years longer after the expiration hereof (viz., commencing on the first day of June, 1869, and ending on the last day of May, 1879) in the same manner as hereinbefore set forth, and subject to all the covenants, agreements and stipulations hereinbefore mentioned.”
It was then admitted that John Garuhart became the as
The plaintiff then proved that he had, in writing, demanded possession of the premises from the defendant, stating in his demand that the term was ended by lapse of time, and also that it had been determined by forfeiture.
There was no evidence given of any failure by the lessee, or his assigns, to perform the covenants contained in the lease on the part of the lessee; but, on the contrary, it was admitted that they had “ performed in proper time all the conditions of said lease.”
It was also admitted that Garnhart, on the 2d of June, 1859, gave the plaintiff notice of the appointment by him of a proper person to appraise the lot leased, in conjunction with one to be appointed by the plaintiff, and the plaintiff refused to appoint an appraiser or to renew the lease. Upon the evidence, the court instructed, in effect, that the plaintiff was entitled to recover.
The defendant is regarded fas evidently he was regarded by the court below and by the parties) as having the same relation to the plaintiff, as to this suit, that the original lessee would have had if he had remained in possession of the premises. The action is brought under the third section of the act concerning forcible entries and detainers, which is as follows: “ When any person shall wilfully and without force hold over any lands, tenements, or other possessions, after the termination of the time for which they were demised or let to him, or the person under whom he claims * * * and after demand made in writing for the deliverance of the possession thereof, by the person having the legal right to such possession, his agent or attorney shall refuse or neglect to quit such possession, such person shall be deemed guilty of an unlawful detainer.”
The determination of the lease by forfeiture, set up in the complaint, was abandoned at the trial, and therefore the sole
Judgment affirmed;