259 Mo. 619 | Mo. | 1914
This is ejectment. Petition filed in the Stoddard Circuit Court August 21,1911, and original summons issued August 25, 1911, but was not served. Alias summons issued December 13, and served on defendant December 15.
The original petition is, omitting caption and signature, in words and figures following:
“Plaintiff states that it is a corporation "organized and existing under the laws of the State of Missouri.
“Plaintiff states that on the 16th day of August, 1911, it was entitled to the possession of the following described premises, to-wit: The southeast quarter of the southeast quarter of section 12, in township 25, range 11 east, in Stoddard county, Missouri. And being entitled to the possession thereof, defendant after-wards, to-wit, on the 17th day of August, 1911, entered into such premises and unlawfully withholds from the plaintiff the possession thereof to its damage in the sum of one hundred dollars.
“Plaintiff further states that the monthly value of rents and profits of the premises is one hundred dollars; wherefore plaintiff demands judgment for the recovery of said premises and one hundred dollars damage for unlawfully withholding the same from plaintiff, and one hundred dollars for monthly rents and profits from the rendition of the judgment until the possession of the premises is delivered to the plaintiff.”
It contained another count which was afterwards dismissed and is immaterial to the questions raised here.
The defendant objected to the action of the court in permitting the amendment.
On the trial S. B. Hunter, president of plaintiff, testified that the defendant went into possession of the land under a contract with him of which there was but one copy, which was delivered by him to defendant, and that on one occasion since, Mr. Norman had let him take it and he had returned it, and had not seen it since. The plaintiff then offered in evidence the record of the same contract in book 36 of the deed records of Stoddard county, with the acknowledgment and certificate of filing thereon. The contract is as follows:
“This agreement made and entered into this 16th day of August, A. D. 1899, by and between Stephen B. Hunter, of the county of Scott and. State of Missouri,* party of the first part, and W. W. Norman of the county of Cape Girardeau and State of Missouri, party of the second part.
“Witnesseth, that the said party of the first party, in consideration of the sum of thirteen hundred dollars to him paid by the said party of the second part, has this day sold unto the said party of the second part, does by these presents sell, assign and transfer unto the said party of the second part all timber, tramroad and right of way on the following lands, to-wit: The west half of section 18, east half and. the east half of the west half of section 19, and northwest quarter of the southwest quarter of section 19, and the east half,*626 and the east half of the west half of section 30 and the east half, and the southwest quarted of section 31, all in township 25 north of range 12, in the county of Stoddard and State of Missouri; the said first party reserves the right to clear and fence lands in the said section 18, and to deaden timber on all the above lands after August 1, 1902; the said first party also leases unto the said second party for the term of five years, free of rent except the taxes, all of the southeast quarter of the southeast quarter of section 12, in township •25, range 11 in said county and State, except two houses, which are used by tenants cultivating lands at .or near Hunter’s switch, together with the privilege of renting the last-named lands at yearly rent of $25 per year after the expiration of this contract until mill is removed, this contract to end in five years after this .date. This contract is subjected to a former contract made with Jl B. Livesay by S. B. Hunter, and assigned -to Platt B. D. GL Co.
“In testimony whereof, the said parties to these presents have hereunto, and also to copy hereof, set their respective hands at ... on the date first above written.
“Stephen B. Htjnter,
“W. W. Norman..”
The defendant objected on the ground that the original was the best evidence, that there was no proof that it had been lost or destroyed, and that its record was not'authorized by the statute relating to that subject; and excepted when it was admitted by the court. Plaintiff: then introduced, against defendant’s objection on the ground that it was not sufficient in form and not accompanied by the deed under which plaintiff .claims title, the following notice:
“To W. W. Norman.
“You are hereby notified that the undersigned desires to terminate your tenancy of its property, namely:
*627 “The southeast quarter of the southeast quarter of section 12, township 25, range 11, in Stoddard county, Missouri. Also all tramroad and right of way and other lands now used or occupied by you on the following lands, to-wit:
‘ ‘ The west half of section 18, the east half and the east half of the west half of section 19, and the northwest quarter of the southwest quarter of section 19, and the east half and the east half - of the west half of section 30, and the east half and the southwest quarter of section 31, all in township 25 north, range 12, in said county and State, now used and occupied by you as its tenant under the lease made by Stephen B. Hunter to W. W. Norman, dated August 16,1899. And you are hereby notified and required to surrender and deliver up to the undersigned as assignee of Stephen B. Hunter, and present owner of said property, the full and complete possession of all of said premises at the end of the present year, August 16,1911.
“You are further hereby notified that said Stephen B. Hunter has conveyed all of said lands, to the undersigned by deed, duly recorded in book 41, page 424, of the deed records of Stoddard county, Missouri, a copy of which deed is hereto attached.
“Done this 14th day of June, 1911.
“The Idalia Realty &• Development Company, a corporation.
“By Stephen B. Hunter,
“President.”
Service of this on June 14,1911, by the delivery of a copy to the defendant was proven by the testimony •of A. L. Harty. Plaintiff also introduced a general warranty deed from Mr. Stephen B. Hunter to the plaintiff, dated January 27, 1904, conveying, among •other lands, the tract here in controversy. This was •duly recorded March 8, 1904.
Mr. S.. B. Hunter testified that defendant was in possession <of lands in controversy and had been since
The defendant testified that he was not in possession of the land hut that it was in possession of the Norman’s Land and Manufacturing Company, a corporation, and that said corporation was in possession of the premises when the summons was served on him; that he was president and general manager of the corporation; that at the time of making the contract he had a mortgage from one J. B. Livesay covering this land and a sawmill located thereon owned by Mr. Live-say, and it was then agreed between Hunter and himself that he should have the use of the premises on which the sawmill was located as long as the mill was there; that he did not take possession of the land under the contract but secured possession through a suit brought against Plouston & Company who were in possession for some two or three months after the contract was made. After he went into possession he went to work running his sawmill and building houses, claiming the right under the contract to stay there as long as he could get timber with which to run his sawmill, and that he did not know that Hunter denied his right to stay there as long as the mill should remain on the premises, until the first five years had expired. That he had always claimed to hold possession of the lands under the contract with Hunter, with the understanding that he would have the use of the property as long as the sawmill was located thereon: that he claimed to abide by the contract; and that he made the deeds to his corporation before the summons was served.
He then introduced a deed from himself and wife to Norman’s Land and Manufacturing Company dated
On the original summons in this case were the following memoranda: “Hold until instructed by Welborn;” “This summons was never delivered to sheriff;” “Charles D. Wilson, Clerk, per Crosser.” The clerk testified that the memoranda indicated just what they said. He would have no knowledge of it unless he had seen the memoranda. That he could not keep track of these little things unless he made some memoranda. Mr. Crosser, the deputy clerk, testified that it was evident that there was not sufficient time to get service for the September term for some reason and that Mr. Welborn had instructed him to hold it until further notice, but he did not remember anything about it, and he was not sure whether further notice was given or not. These memoranda were excluded and defendant excepted. Norman testified that he had heard be
The alias summons served on the defendant was ordered by the court December 7, 1911.
At the close of all the evidence the defendant asked for a peremptory instruction in his favor, which was refused, and he excepted. The court then gave the following instruction for the plaintiff:
“The court instructs the jury that under the pleadings and evidence, as adduced in this case, the finding-must be for the plaintiff for the possession of the premises sued for, and you will assess as damages for the plaintiff the value of the rents and profits of the said premises from the date of the institution of this suit until this time, not to exceed the sum of $800, and you will also determine in your verdict the value of the monthly rents and profits of said premises, not to exceed one hundred dollars a month.”
To the giving of the aforesaid instruction counsel for defendant then and there duly objected and excepted.
The jury returned the following verdict, upon which the judgment was entered:
“We, the jury, find the issues joined in the above-entitled cause for the plaintiff, for the possession of*631 the property described in the petition, and assess the’ damages sustained by the plaintiff by the detention of said premises at the sum of seven hundred dollars;, and we assess the monthly value 'of the rents and profits at the sum of one hundred dollars.”
Those sections have no application whatever to the notice required by the terms of section 7882 to terminate a tenancy from year to year. They simply give the tenant the right, when asked to attorn to an apparent stranger by the payment of rent, to be satisfied of the right of the new landlord to make the demand; and it makes it the duty of the latter to so satisfy him, in the manner therein pointed out, before proceeding against him under those sections for nonpayment of rent.
The statute provides that “every instrument in writing conveying or affecting real estate, which shall be acknowledged or proved, and certified as hereinbefore prescribed, may, together with the certificates of acknowledgment or proof, and relinquishment, be read in evidence without further proof.” [R. S. 1909, sec. 2818.] Thq defendant insists that this instrument, which we have already held to be a lease for five years with a provision for its continuance from year to year, does not affect real estate. The utmost that construction or, explanation can do is to reduce the proposition to its simplest terms; and in this case it is done by stating it in the plain and unambiguous words in which the Legislature has expressed its will. It again recognizes, as it had already done in section 2809, that some instruments which come within its provisions convey, while others only affect, the thing with which they deal, and without giving any intimation whether or not it might come within the former class, we have no hesitation in saying that it clearly falls within the latter. It follows that to entitle the record to be read in evidence in accordance with the terms of section 2819, it is not necessary to prove the loss or destruction of the original, or to give the opposite party, when it is presumed to be in his possession, notice to produce it. Of this we said at an early day, and here repeat: “The words of the statute ‘not within the power,’ should be construed as not within the control or possession of the party wishing to use a copy — that is, not in the possession of the party, his agent, servant •or bailee, or other persons’under his control. There
The judgment of the circuit court must be affirmed.
PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.