28 Mo. 434 | Mo. | 1859
delivered the opinion of the court.
This was an action of ejectment to recover possession of leasehold premises. The fact that the plaintiff purchased the property intending that Schultze should have it, would not make the sale void as to Schultze’s creditors. One has a right to purchase the property of another and hold it for his benefit or permit him to enjoy the benefit of it. Such conduct can in nowise prejudice creditors; nor is the case altered by purchasing with the understanding that the debtor shall have the privilege of redeeming on payment of the sum advanced. Such a transaction would at most amount to a mortgage, and the creditors would not be allowed to come in but upon first satisfying it. We see no error in the giving or refusing instructions on these points. No doubt if the money, with which the plaintiff purchased the property, was furnished by Schultze, his right to a recovery, upon the proper establishment of that fact, would be taken away.
We are of the opinion that there was error in the instruction given as to the measure of the damages. The jury were instructed that the measure of damages was the value of the rents and profits of the premises sued for during all the time the defendants have held the possession against the plaintiff to this day. Now the lease in evidence showed that it had expired before the trial. The statute says, if the plaintiff prevail in the action, he shall recover damages for all waste and injury, and by way of damages the rents and profits down to the time of assessing the same, or to the time of the expiration of the plaintiff’s title. On the evidence in the case, this instruction was clearly erroneous. Even on the instruction as given, the damages were excessive, the annual rent of the premises being seven hundred dollars and the lease showing that from this sum deductions were to be made.
The affidavits accompanying the motion for new trial showed a very hard case against the defendant G-aresché, who in this whole matter manifested that he was willing to do
Reversed and remanded;