Hyde v. Fraher

25 Mo. App. 414 | Mo. Ct. App. | 1887

Hall, J.

This was an action of forcible entry and detainer. The plaintiff’s tenant was, under his. lease, in possession of the premises at the time of the alleged forcible entry. After the expiration of the term of the lease the defendant, being still in possession of the premises, the plaintiff brought this action of forcible entry and detainer,

The single question is presented in this case, can a landlord maintain an action of forcible entry and detainer for the dispossession of his tenant during the term of the lease, after the expiration thereof ? The circuit court held that the landlord could not maintain such action.

Where a tenant is turned out of possession, he alone, and not the landlord, can maintain an action of forcible entry and detainer. Bennett v. Montgomery, 3 Halls (N. J.) 48; Commonwealth v. Bigelow, 3 Pick. 31; Polack v. Shafer, 46 Cal. 270 ; Burns v. Patrick, 27 Mo. 434. In none of the cases cited does it appear whether or not the term of the lease had expired at the time of' the institution of the action. Had those cases been decided on the ground that the leases had terminated at the time of the institution of the actions, that essential fact would, no doubt, have been noticed. But in an action of this kind the question is not, who is entitled to the possession of the premises? The object of the action is, to restore things to the state in which they were before the forcible entry was committed. The gist of the action is the forcible entry ; the object of the action is restitution to the one dispossessed. The tenant, not the landlord, is entitled to the immediate profits of the land.

That the termination of the lease has no bearing on this question is made clear by the further consideration that, if the landlord, after the expiration of the lease, forcibly enters upon the premises still in the possession of the tenant, the latter can maintain an action of forcible entry and detainer against the former. Krevet v. Meyer, 24 Mo. 107. And, of course, the tenant could also maintain such action against a stranger for a forcible entry made after the expiration of the lease, if the premises were, at the time of the forcible entry, in the tenant’s possession. If the tenant can maintain an action for a forcible entry committed after the expiration of the term of the lease, how can it be held that the expiration of the term of the lease terminates the right of the tenant to maintain an action for a forcible entry committed during the term of the lease, and gives such right to the landlord ?

The judgment is affirmed.

Ellison, J., concurs; Philips, P. J., absent.