167 Mo. App. 342 | Mo. Ct. App. | 1912
Action of unlawful detainer begun before a justice of the peace, appealed to the circuit court and there tried by the court and issues found 'for defendant. Plaintiff has appealed.
Plaintiff leased fourteen acres of land to one Marie Hardcastle. By the terms of the lease, Hard-castle was required to clear and cultivate • the-land. Afterwards, Hardcastle, with the consent of plaintiff, made an agreement with this defendant by which defendant acquired some interest in the lease of the land and on the extent of that interest this controversy hangs. Plaintiff contends that defendant only acquired the .right- to occupy and cultivate a part of the tract covered by the lease while defendant contends that his rights extend to the whole tract. The testimony was conflicting as to that question and the court sitting as a jury having found' in defendant’s favor, the judgment of the trial court is final unless under the law and the facts, defendant could not acquire an interest, in the whole tract. [Nickey v. Leader, 235 Mo. 30; 138 S. W. 18, 1. c. 41.]
The first point made by appellant is that Hard-castle could not assign the lease or any part ,of it without the written assent of plaintiff under Sec.,7880,
It will thus be seen that the lease extended from September 23, 1909 to January 1, 1913, a period of more than two years; hence, the statute does not apply-
Hardcastle, the lessee, died in September or October, 1910, and appellant contends that the lease then went to his personal representative but the administrator of Hardcastle refused to take charge of it and for that reason it became the duty and the right of plaintiff to take it. However this may. be, no. one could interfere with the rights of defendant and since his rights were acquired before the death of Hard-castle, he is not affected thereby.
The suggestion is made in brief of counsel for appellant that the trial court based his finding upon the ground that the notice and demand for possession served by plaintiff on defendant covered more land than the amended petition on which the case was tried and that being true, the finding was wrong. There was no finding of facts and no declarations of law given or refused and there is nothing in the record before us to indicate the ground upon which the court found for defendant, hence, if the finding is justified upon any ground, we must uphold it.
As we view this record, the only question for the trial court to pass upon was a question of fact and there being evidence on both sides of that issue, his finding is binding upon us and the judgment must, therefore, be affirmed.
