McCartney v. Auer

50 Mo. 395 | Mo. | 1872

Wagner, Judge,

delivered the opinion of the court.

This suit was brought before a justice of the peace to recover possession of certain premises in Kansas City. At the trial before the justice the defendant had judgment.' The case was then appealed to the Court of Common Pleas, and after hearing the testimony the court gave an instruction that, upon the. evidence, the plaintiffs could not recover. A nonsuit was then ' taken, and after an unavailing motion to set the same aside, a' writ of error .was sued -out. The evidence adduced at the trial ' shows that the plaintiffs were in possession of the premises by their tenant, and.while- the tenant was so in possession he delivered up the key of the storehouse to another party, and then accepted the key back as the tenant of one P. S. Brown, under an arrangement made with Brown. A short time after this arrangement, in consideration of $300 paid him by the defendant, the tenant, who had continued in the occupancy all the time, delivered the possession to the defendant, who still retained the possession at the commencement of this suit.

This attornment by the tenant was not made with the assent of the plaintiffs, nor in pursuance of any provision of law on the subject. The attornment was void and did not in the least affect the possession of the landlords. (Wagn. Stat. 880, § 15; Rutherford v. Ullman, 42 Mo. 216.)

The statute provides that no tenant for a term not exceeding two years (and here the tenancy was yearly) or at will, or by sufferance, shall assign or transfer his term or interest, or any part thereof, to another, without the written assent of the landlord or person holding under him; and that if any tenant violate the' above provisions, the landlord or the person holding under him, after giving ten days’ notice to quit possession, shall have a right to re-enter the premises and take possession thereof, or to oust the tenant, sub-tenant or under-tenant, by the proper procedure. (Wagn. Stat. 879, §§ 10, 11.) When, therefore, the illegal attornment was made, upon giving the requisite-notice, the plaintiffs had the right to institute proceedings to regain possession. The plaintiffs attempted to prove that they gave the neces-, sary notice, and it was ruled out by the court, wrongfully as. I think.

The complaint in this-case charges the defendant with, forcible entry and detainer. It is obvious that there was no.forcible entry, but there was unlawful detainer. Strictness of averments .arid-technical precision in pleadings is not required in magistrates’, courts. The statement-may have used.yrords not strictly, applicable to the case, but the statute declares that where there is an allegation of forcible entry “ the complainant shall not-be compelled to make further proof of the forcible entry or detainer than that he was lawfully possessed of the premises, and that the defendant unlawfully entered into and ¡detained, or unlawfully detained, the same.” (Wagn. Stat. 645, § 16; also Wunsch v. Gretel, 26 Mo. 580.)

The plaintiffs’ testimony tended to prove an unlawful entry and an unlawful detainer, and I think the court erred in its instruction talcing the case from the -jury. The judgment will therefore be reversed and the cause remanded.

The other judges concur.