Gray v. Rogers

30 Mo. 258 | Mo. | 1860

Scott, Judge,

delivered the opinion of the court.

The controversy seems to be abandoned as to half the rent claimed, as the plaintiff has not appealed from the judgment of the court below. The defendants were tenants under Cutter — who has assigned his claim to the rent to the plaintiff — when the deed was made by Cutter in 1854 to Page and Bacon. It is singular the defendants should be making a de-fence for the benefit of Page and Bacon, when they have not been required to do so. Page and Bacon have never required rent of them. The recording of the deed made by Cutter to Page and Bacon does not affect the defendants, as they were tenants under Cutter before the deed was executed. That is not a matter of which they were required to take notice. If Page and Bacon claim the rent, they should give notice to the defendants to pay it to them. The defendants, from the case as presented, would avoid the payment of rent to anybody. Cutter explains why Page and Bacon have never demanded the rent. They authorized Cutter to receive the rents and profits, and the defendants promised to pay him the rent, thereby recognizing him as their landlord, both^before and after the deed to Page and Bacon. We do mot see how the defendants are in any danger, as they have never had notice from Page and Bacon, nor been required to pay them rent. They do not, in their defence, state the fact that the rent has ever been claimed from them by Page and Bacon, although their right to it, if they had any, had existed for years. So far from any thing of the kind, they assert that the assignment of the rent by Cutter to the plaintiff was made with an intent to defraud the creditors of Cutter, thereby impliedly admitting that he was entitled to the rent. If the assignment was fraudulent, it was no concern of the defendants. They were never required to attorn to Page and Bacon, and until that is done or notice given, how can they be held liable to them for rent ? This is not the case of one taking a lease from a vendor after he has conveyed away the premises by a recorded deed.

None of the instructions asked by the defendants assumed the existence of the fact, that they had been notified to pay rent to Page and Bacon, or that Page and Bacon had required an attornment to them. Judging from the record, the defendants stand now as they did when they entered under Cutter. This is not a controversy between Cutter or his assignee on one side, and Page and Bacon on the other. Page and Bacon have done nothing showing that they claimed the rent in controversy, and the defence of their rights by the defendants is entirely gratuitous.

Judgment affirmed; the other judges concurring.