6 Mo. App. 72 | Mo. Ct. App. | 1878
delivered the opinion of the court.
This is an action of unlawful detainer. In December, 1873, the plaintiff borrowed $800 of defendant Nichols, for which he executed five several promissory notes, and a deed of trust securing them on the premises in controversy, situate in the city of St. Louis. In October, 1874, plaintiff moved to a farm in the country, leaving the premises in charge of defendant Nichols as his agent, with authority to rent, keep in repair, pay taxes, etc., and to account to plaintiff for any surplus of collections. In 1876, plaintiff requested Nichols to rent or lease the premises to Dr. Robinson. Nichols refused to have any agency in the matter; whereupon plaintiff himself rented and delivered the premises to Robinson, collecting one month’s rent in advance, and constituted Joseph Sichenger his agent in charge of the property, in the place of Nichols. Robinson moved out at the expiration of six weeks, and voluntarily delivered the keys to Nichols. Sichenger put up a bill, “For Rent,” on the house, with direction to call upon him for particulars. He asked Nichols for the keys, and was at first told to go to Robinson for them. Upon another application,' Nichols told him that he had the keys, and that the house was his property. On June 3, 1876, the property was sold under the deed of trust given by plaintiff to Nichols, and Nichols became the purchaser. On the same day, without the knowledge or consent of the plaintiff, he rented the premises to his co-defendant, and put him in possession.
Upon such a state of facts, it would be strange if there
When alawful — that is, a peaceable — occupancy is found to exist, every legal presumption is in its favor. If the presumption of rightfulness is to be removed, it must not be by the strong hand, or by intrusion and dispossession. It must be done, if at all, by evidence before a court of justice, in a proceeding devised by the law for that purpose. The holder of the most absolutely perfect title, who disregards this precept, will be compelled to restore to his disseisee all the advantages of his original position before this can be made the subject of investigation. Forcible entry and detainer and unlawful detainer are the machinery provided by law to effect such a restoration.
An attempt is made in the present ca§e to avoid the application of these, well-established rules by assuming that when defendant Nichols entered upon the premises either they were unoccupied or the possession was already in him. The position is untenable in every aspect. The constructive possession which is sometimes supposed to follow the title has no recognition in cases of this description. The delivery of the keys by Robinson to Nichols had no more significance than a delivery to a mere messenger or temporary custodian for the benefit of the landlord. Nichols was neither the landlord nor the agent of the land
Eeference is made, in argument, to the statutory provisions concerning attornment by a tenant, and those concerning derivative titles. They have no application to the present case. Here is no controversy between landlord and tenant, or between parties claiming under either in that relation. As to the law of derivative titles, it has no direct application in unlawful detainer, except in behalf of a
The judgment for the plaintiff was right, and we find no error in the record. All the judges concur in affirming the judgment.