15 Mo. App. 307 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This was an action for six months’ rent of a farm in St. Louis County. There was a finding and judgment for defendant.
It appeared from the evideuce, that Thiemann had been
On the trial, defendant was allowed to introduce evidence tending to show, that Thomas Meier, the lessor of defendant, was a mere tenant at will of his brother, Adolphus Meier, who let him have possession of the place. Adolphus Meier bought the farm in 1857 ; and had ever since owned it and paid taxes and improvements on it. Thomas Meier was allowed by his brother Adolphus to occupy the place as a means of support; and Adolphus did not know, till after his death, that Thomas had given a lease of it.
It is contended by appellant, that Adolphus Meier was not a competent witness to prove the understanding between himself and his brother Thomas, under which Thomas Avas in possession of the premises ; and, also, that the defence set up was incompentent, because it was a denial by by the tenant of his landlord’s title. These tivo questions are the only questions that arise upon the record.
1. If a tenant at will lease the land in his possession, the lease will be good between himself and his lessee, so long as he is suffered to enjoy the premises. Holbrook v. Young, 108 Mass. 85 ; 1 Washb. on Real Prop. 582. But the original landlord may enter upon the demisee of the tenant at will as a disseisor; and such demisee is entitled to no notice, and, as to the original landlord, is a mere tenant at sufferance. Reckhow v. Shank, 43 N. Y. 448. The rule is Avell settled that a tenant, after having accepted possession from his landlord, is not allowed to dispute
2. As to the second point, we are of opinion that Adolphus Meier was a competent witness.
The statute provides (Rev. Stats., sect. 4010) that, “ no person shall be disqualified as a witness in any civil suit by reason of his interest in the event of the same, as a party or otherwise ; but such interest may be shown for the purpose of affecting his credibility; provided, that, in actions where one of the original parties to the contract or cause of action in issue or on trial is dead, or is shown to the court to be insane, the other party shall not be permitted to testify in his own favor.” It has always been
Counsel for appellant contends that, when a party to the contract is dead, the other party to the contract can testify to no fact to which he might not testify at common law, though he be not a party to the suit. To hold so would be to hold directly contrary to the ruling of the supreme court in Looker v. Davis (supra). In support of this view, counsel cites Angell v. Hester (64 Mo. 144), and Ring v. Jamison (66 Mo. 429). Nothiug is decided or said in either of those cases which warrants this doctrine. In both of these cases the witness improperly admitted to testify was a party to the suit as well as to the contract or cause of action. In both of these cases Judge Henry says that in cases where the common law excluded a witness as to certain facts only, and not generally, he may testify under the statute as to such facts as he might have testified to at common law, though he be not allowed to testify generally. But in neither case does the court hold or intimate that one not a party to the suit is to be excluded. It is true that, in Angell v. Hester, in stating the distinction, Judge Henry does hot expressly say “party to the action,” but his meaning is not at all obscure. He takes it for granted that the party to be excluded must be a party to the action as expressed in the language from Looker v. Davis, which he
The judgment is affirmed.