69 Mo. 510 | Mo. | 1879
This is an action of unlawful detainer by defendant, of land, possession of which is claimed by plaintiff. On appeal to the circuit court from the judgment of the justice of the peace, it was tried de novo and judgment rendered for plaintiff, from which defendant has appealed to this court. It appears from the evidence that defendant took possession of the land in 1868, and has resided on it ever since; that in 1871 P. T. Miller obtained judgment against defendant in an action of forcible entry and detainer, which, on appeal to this court, was affirmed, and a writ of restitution awarded, with which the sheriff, in company with the agent of Miller, went to the premises occupied by the defendant, Tillman, for the purpose of executing the writ, whereupon defendant accepted the following lease:
“These articles of lease, made and entered into this 4th day of December, 1875, by and between Antoine Tillman, of the county of Osage, and P. T. Miller, of the county of Cole, both of the State of Missouri, witnesseth, That, whereas, said Miller has obtained judgment for the*512 possession of the following described real estate,” (the same as described in the complaint,) and the improvements thereon of whatever kind. Therefore, it is this day agreed that the said Miller rents to said Tillman said land for the .sum of $1.00 until the 15th day of December, 1875, and the said Tillman hereby agrees to deliver and give possession to said Miller, or his agent, without further notice, on that day.
Witness our hands and seals, this 4th day of December, 1875.
A. Tillman, [seal.]
P. T. Miller, [seal.]
Witness: Louis C. W. Krauthoee.
The above articles of lease are, on this 20th day of December, 1875, renewed until the 1st day of March, 1876, on the same terms and conditions therein contained, and for the sum of $1.00.
A. Tillman, [seal.]
P. T. Miller, [seal.]
Witness: Louis C. W. Krauthoee.
I assign the within lease to * *
P. T. Miller.
It also appears that on the 20th day of February, 1876, Miller, by deed, conveyed the land in question to plaintiff, and that after the expiration of the time of renting specified in the lease, demand in writing for possession of the premises was made of defendant, which he refused to deliver. Upon this state of facts the court gave the following instructions: “If the court, sitting as a jury, believe from the evidence that the defendant, Tillman, leased from P. T. Miller the land described in plaintiff’s complaint herein, that P. T. Miller conveyed the said property by deed to the plaintiff, Kaulleen, and that by the terms of said agreement Tillman agreed to deliver the possession o said lands to Miller’s grantee, Kaulleen, then the defendant is guilty of unlawful detainer in manner and form as
These instructions are objected to on the ground that it was not shown that Miller, the grantor of plaintiff, had ever been in the actual possession of the land, or that plaintiff had ever beep’in possession. We are of opinion that the objection is not well taken. The action is founded on section 3, page 642, Wagner’s Statutes, which declares that “ when any person shall willfully and without force, hold over any lands, tenements or other possessions after the termination of the time for which they were demised or let to him, &c., such person shall be deemed guilty of unlawful detainer.” The possession of defendant, Tillman, after accepting the lease in evidence and holding under it, was the possession of Miller, the lessor, and according to the terms of section 3, supra, his refusing to deliver possession of the leased premises after the expiration of the time for which they were leased, made him liable to an action for unlawful detainer by the person having the legal right to such possession. This view is fully sustained by the cases of Grant v. White, 42 Mo. 285, and Gillet v. Mathews, 45 Mo. 307, and justifies the court in giving the instructions complained of. The principle announced in them also prohibits defendant from invoking as authority in support of the instructions asked by him and refused by the court, section 27, p. 646, Wag. Stat., for it is expressly declared that said section 'does not apply to an action of unlawful detainer as provided in section 3.
It is also insisted that defendant’s motion for new trial ought to have been sustained on the ground therein alleged, that he was mistaken as to the day of trial, that it was tried on Friday, when he had been informed by Eyors, one
Aeeirmed.