199 Mo. App. 466 | Mo. Ct. App. | 1918
Plaintiff’s action is founded on a bill in equity to restrain defendant from prosecuting an action for unlawful detainer against plaintiff. Tbe judgment in the trial court was for plaintiff.
It appears that Laura S. Eddy owned tbe property in question. Sbe executed a lease to C. C. Rhodes on tbe 9th of January, 1914, for three years containing a provision that 1 ‘ Tbe said C. C. Rhodes is to have the option of two years extension of this lease at tbe expiration of bis term herein at tbe same rental.” Rhodes assigned tbe lease to plaintiff on the 27th of September, 1915, and tbe latter went into possession.
After executing tbe lease to Rhodes, viz, on tbe 30th'' of August, 1914, sbe gave a deed of trust on tbe property, which was foreclosed on the 8th of September, 1916, and Gertrude Zeller became tbe purchaser; and sbe, in the next month, to-wit tbe 20th of October, sold it to defendant Altman, plaintiff being then in possession as tenant under tbe assignment of tbe Rhodes lease to him. Defendant Altman notified plaintiff that be bad become tbe owner of tbe premises and to thereafter pay tbe rent to him. Plaintiff thereupon did pay to him tbe rent reserved in tbe lease for several months, up to April, 1917; tbe months of February and March being after the expiration of tbe original three years term. They were consequently within tbe two year extension period provided in tbe lease.
Tbe lease given by Laura S. Eddy to Rhodes was not recorded but tbe fact that the plaintiff was in possession of tbe property as a tenant and that tbe defendant notified him that be bad become tbe owner and that be (tbe
The lease being binding on defendant, the question arising on that fact is what rights has the plaintiff as tenant under the lease? We think that his holding over the original term (defendant acquiessing) and paying rent to defendant was an election to accept the extension for two years as provided in the lease. [Lewis v. Perry, 149 Mo. 257, 267, 268; Realty Co. v. Brecht, 109 Mo. App. 25; Insurance Co. v. National Bank, 71 Mo. 58; Miller v. Albany Lodge, 168 Ky. 755; Hurley Tobin Co. v. White, 84 N. J. Eq. 60; Kean v. Story Piano Co., 121 Minn. 198.] The lease may be said to be, in effect, a present demise for the term, as extended, with the right in the tenant to reject the extension, if he so elects.
But defendants have questioned plaintiff’s remedy; and have affirmed that there was no necessity for a resort to equity, since every material part of his case could have been presented as defense in the unlawful detainer. If the provision in the lease were for a “renewal” for two years, and showed a new lease was intended, instead of an “extension” for that time, we could readily overrule the point since in that condition of case, under decisions in this State, it would require t(he interposition of equity to enforce a renewal provision bjr specific performance, and as a justice of the peace has not jurisdiction of questions in equity, the only remedy of the tenant, would be in the circuit court on a bill to restrain prosecution of the suit in unlawful detainer. [Finney v. Cist, 34 Mo. 303, 309; Blount v. Connolly, 110 Mo. App. 603.] But in those cases the lease contemplated the making of a new lease, if the tenant decided to keep beyond the original term. While in the case before us, the lease merely provides for an extension; no portion of it expressing, or
If a renewal is to be had, “The lease must clearly and positively show that the making of a new lease was intended.” [2 Underhill on Landlord and Tenant, sec. 803.] In some of the States the courts seem to refuse to recognize any distinction between the words “renewal” and “extension,” except, we apprehend, in instances where, as stated by Underhill, a renewal by a new lease, clearly appears to be the intention. [Perry v. Lime Co., 94 Maine 325, 334; Orr v. Doubleday Co., 157 N. Y. Sup. 1009, 1012.] But in the absence of a provision of the nature, expressed by Underhill the courts are inclined to the view that there is no practical difference, between a “renewal” and an “extension:” [Howell v. City of Hamburg, 165 California, 172, 177.] And we think the latter class has been chosen in this State. [Insurance Bldg. Co. v. National Bank, 71 Mo. 58, 60-62.] We feel it to be clear that where the “renewal” of the lease is to be on the same terms as the original, it would be a useless thing to execute a new paper; and therefore, the tenant, on exercising his option, will hold under the original lease, as upon an extension for the extended period provided for in that lease. The original lease, as already suggested, is a present demise of the extended term to take effect upon the option of the tenant.
It being thus made apparant that the plaintiff: (the present tenant) is holding the extended term under the original lease, and that there is no necessity for a new lease, he does not require the aid of a court of equity to maintain his right to the premises, since all his rights to the property may be asserted at law in the action for unlawful detainer; and so it has been decided. [Rapp v. Williams, 1 Hun. 716; Bade v. Wallace, 96 Ill. App. 370.]
It follows that the plaintiff having no occasion for relief has no standing in equity and therefore the judgment will be reversed.
