Tliis appeal is wholly without merit. The case is an action for unlawful detainer. Plaintiff recovered and defendant prosecutes the appeal. The question for consideration relates alone to the sufficiency of the evidence to support the finding and judgment to the effect defendant was in actual possession of •the property as tenant of plaintiff at the time of the institution of the suit. The controversy involves the possession of a portion of a brick building situate at Fourth and Gratiot streets in the city of St. Louis to which it is conceded plaintiff owns the title.
It appears the Meyrose Lantern Company had oc-' cupied the property for about fifty years and that both the business of that concern and the building were owned by Ferdinand Meyrose. A few years ago Mr. Meyrose sold the Meyrose Lantern Company to A. H. Gandían, the father of defendant, A. H. Handlan, Jr. After having sold the business to A. H. Handlan, Ferdinand Meyrose, then the owner of the building in which the business was situate, leased the building to defendant, A. H. Handlan, Jr., for a term of two years, to expire September 6,' 1907, and the evidence tends to prove that the lantern business under the name of the Meyrose Lantern Company continued therein under this lease as before. Soon after selling his business to A. H. Handlan and after executing the lease of the building to A. H. Handlan, Jr., Mr. Meyrose sold the-building to plaintiff, subject, of course, to the lease. In July, 1907, prior to the expiration of the lease on September 6 of that year, defendant, A. H. Handlan, Jr., called upon plaintiff’s agent and negotiated with him about a lease for an additional two months, to expire November 6, 1907. It is in evidence that defendant sought to continue in possession of the property until he could complete a new building into which he intended to move. Besides this conversation, several letters in evidence were interchanged between defendant and plaintiff’s agent in which plaintiff expressed himself substantially
The testimony for defendant tends to prove that though he renewed the lease for the time mentioned and both spoke and wrote of it as “my lease, etc.,” he was in fact acting for his father, A, H. Handlan, who, he says, owned the business. The action proceeds under the first provision of section 7657, Revised Statutes 1909, Avhich declares any person who shall willfully 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 is guilty of an unlawful detainer. There can be no doubt of the proposition that the action of unlawful detainer lies under this provision of our statute only when the premises are demised or let to defendant or some person under whg»m he claims. Besides the express words of the statute, see H. & St. Jo. R. Co. v. Hill, 60 Mo. 281. It is true, too, that, as the action of unlawful detainer is possessory in its character, it lies only against the party in actual possession of the premises and may not be maintained against one who is not in such possession at the time suit is instituted. [Orrick v. St. Louis Public Schools, 32 Mo. 315; Jennings v. Robinson, 82 Mo. App. 544.]
Defendant argues the present suit may not be maintained, first for the reason that it does not appear the premises were demised or let to defendant A. HI Handlan, Jr., or to some person under whom he claims, and, second, that it does not appear he was in the actual possession of the premises at the time the suit was instituted. it is conceded that possession of the property was not given at the end of the two months stipulated for under the new letting made between this defendant and plaintiff’s agent, which expired on November 6, 1907, nor until after this suit was instituted. After
The argument put forward is, that as it appears A. H. Handlan purchased the business of the- Meyrose Lantern Company in 1905, then it is obvious that he was in possession of the property and not his son, A. H. Handlan, Jr., the present defendant. A. H. Handlan is connected with the Handlan-Buck Manufacturing Company, which owns and maintains an important business on Third street in the City of St. Louis, and defendant, A. H. Handlin, Jr., is secretary of that company as well. Be all of this as it may, there is an abundance of proof to sustain the finding and judgment that defendant, A. H. Handlan, Jr., was the lessee of the premises and in actual possession thereof as such. Though A. H. Handlan may have purchased the business of the Meyrose Lantern Company in the first instance, he may have done so for the benefit Of his son for all the record discloses to the contrary. At any rate, it is entirely clear defendant, A. H. Handlan, Jr., leased the premises in the first instance in September, 1905, from Ferdinand Meyrose for,' besides the lease being executed to A. H. Handlan as the lessee, which it is true is the name of defendant’s father as well, Mr. Meyrose on the witness stand testified positively that he executed the lease with
“Dear Sir: In reference to the conversation I had with you. today, regarding the occupancy of the building I now occupy, beg to say that I will remain there until November 6th, and if you can see your way clear will occupy the building' for a longer period. Trusting you will advise me promptly, I remain,
Yours truly,
A. H, Handlan, Jr.”
All of this constitutes not only substantial evidence but an abundance thereof to the effect that A. H. Handlan, Jr. leased the premises for himself and that he Avas in actual possession thereof at.the time of the institution of this suit on his own account. This court will not attempt to weigh the probative force and ef