Hughes v. Carson
90 Mo. 399
Mo.
1886
Check Treatment
Shebwooh, J. —

The question presented by this re*402cord is whether an action will lie against a landlord for mesne rents and profits, after judgment in ejectment against his tenant, and recovery of possession, where the judgment included a recovery for such rents and profits, and where the tenant was the only party defendant to the ejectment, and is insolvent, the point presented being raised by a motion in arrest of judgment denying the sufficiency of the petition on which the judgment for such rents and profits was based; and this is the only point for determination.

The petition in substance alleges that the plaintiffs sued the tenant in ejectment, demanding judgment for possession, damages, rents and profits ; that defendant was not a party to the ' action, but that he resisted said suit, by employing and paying counsel, and otherwise managing and controlling the defence thereof; that the tenant is insolvent, and that plaintiffs have recovered possession of the premises by virtue of their judgment-in ejectment. At common law such an action would lie against the landlord in fact, who was in receipt of the rents and profits, or who resisted the recovery in the ejectment suit, although he wag not a party to that suit. Woodfall’s Landlord & Tenant, 710; Chirac v. Reinecker, 11 Wheat. 280 ; Tyler on Eject., 841. In this case it does not appear from the petition that the defendant landlord was in receipt of the rents, etc., but this, from the authorities cited, does not appear to be essential, if the other circumstances appear showing that the landlord aided and abetted the tenant in his resistance to the recovery of the premises in ejectment. But were such an averment necessary in the petition, it is supplied in this instance by the allegation in the answer, that the defendant “received no part of the rents and profits of said land, or any benefit therein;” for this allegation cured any defect in the petition on that score, even if such allegation were necessary, because it was a rule at common law, known as “express aider,” that any *403omission to state a material fact, either in declaration or plea, would be obviated if the pleading of the opposite party put the matter in issue. Garth v. Caldwell, 72 Mo. 622, and cas. cit. No reason is seen why the common law rule in respect of holding the landlord liable for the mesne rents and profits should not continue to prevail, notwithstanding the statutory provisions of section 2252, especially where, as here, the landlord was ' not made a party to the record in the ejectment suit; and of course no merger of plaintiff’s cause of action in the former judgment occurred. That such an action is still maintainable against the landlord, notwithstanding the statutory provisions, is asserted by the text writers. Tyler on Ejectment, 838.

Had the tenant been solvent and the j udgment rendered against him for mesne rents and profits been satisfied, this, of course, would have been a bar to any recovery against the landlord for the same matter ; but the tenant being insolvent, and the landlord also liable, a worthless judgment against his tenant is no bar to an action against him.

For these reasons the judgment should be affirmed.

All concur.