| Mo. Ct. App. | Apr 7, 1913
The plaintiff. brought this suit in ejectment for the possession of certain lands in Jasper county, Missouri, predicating his title and right
One of the errors complained of by plaintiff- is that the court denied him the right of trial by jury. It appears from the pleadings that both parties sought to inject equitable matters into the pleadings and trial of this case and after so doing the plaintiff ought not to be heard in any complaint that the court tried the case as one in equity. Besides this, the judgment entered by the court recites that the parties waived a jury.
The facts in the case show that defendant Murray placed the land in question' in the hands of A. G-. Young, of Webb City, Missouri, to rent for her, giving
It is also shown that plaintiff’s farming venture was not much of a success; and that during the two years during which he farmed the same, in the manner above mentioned, his income from the same was hardly enough to pay the rent due Mrs. Murray as landowner. Some of the subtenants paid the plaintiff cash rent and others paid him grain rent. To some of them he gave leases on parts of the land coextensive with his own lease, and others had shorter leases with options to renew the same from year to year. In the fall of 1910, the plaintiff, then being in arreas in the payment of his rent to the extent of $75 or more, without any notice to defendant Murray or her agent left this State and went to Texas. He gave very little information to his subtenants or to anyone else as to his purpose in going there; how long he intended to stay; when, if ever, he intended to return or what he in
In this condition of affairs, shortly after the first of March, 1911, Mr. Young, believing as he says that plaintiff had abandoned the premises, again rented the same for a period of five years to the defendant Mc-Reynolds, executing to him a written lease, under which he took possession of the land in question. The plaintiff did not return to this State until August, 1911, though in the meantime he had written to Mr. Young to know if the subtenants had paid the rent to' him, whereupon Mr. Young informed him that they had not and that he had rented the land to defendant MeReynolds. Plaintiff says he intended to return about March 1st and gives as his reason for not returning sooner that he had received an injury about that time and was unable for some time to do any work or return to this State. He says, however, that during most of his stay in Texas, both before and after his alleged injury, he was working for daily wages.
The question of the Statute of Frauds, the right of Mrs. Murray to forfeit this lease for nonpayment of rent and several other questions are discussed by counsel in their briefs in this case. ' We are satisfied, however, that the trial court decided this case largely, if not wholly on the question of plaintiff’s abandonment of the premises and the right of Mrs. Murray under the circumstances to re-enter and lease the land to another. We have not set out all the evidence bearing on this question and it would serve no useful purpose to do so. There was evidence both ways and we are satisfied with the finding of the trial court on this question of fact, inasmuch as the trial court heard the evidence, saw the witnesses who testified and possessed those advantages which are always accorded to a trial court in hearing and weighing evidence.
The question of abandonment of leased premises by a tenant so as to afford the landlord the right of re-entry is largely a question of fact. In Churchill v. Lammars, 60 Mo. App. 244" court="Mo. Ct. App." date_filed="1895-01-14" href="https://app.midpage.ai/document/churchill-v-lammers-6617918?utm_source=webapp" opinion_id="6617918">60 Mo. App. 244, 248, the court said: ‘ ‘ The rule of law is said to be now settled that any acts, which are equivalent to an agreement on the part of the tenant to abandon, and on the part of the landlord to resume possession of the demised premises, amounts to a surrender by operation of law.” [Talbot v. Whipple, 14 Allen 177.] A surrender may be inferred from the circumstances and conduct of the parties evincing that they both agree to consider a surrender as made.
In Crawley v. Mullins, 48 Mo. 517" court="Mo." date_filed="1871-10-15" href="https://app.midpage.ai/document/crawley-v-mullins-8003331?utm_source=webapp" opinion_id="8003331">48 Mo. 517, 519, the court, in speaking of the case of Schuisler v. Ames, 16 Ala. 73" court="Ala." date_filed="1849-01-15" href="https://app.midpage.ai/document/schuisler--donnell-v-ames-6503989?utm_source=webapp" opinion_id="6503989">16 Ala. 73, said: “In the last case it does not appear that the rent could not have been collected, and the court held that the landlord was not bound to let his premises lie idle and unoccupied, as it might he more injurious to him than to enter and lose the rent.”
In 24 Cyc. 1372, the law is stated thus: “An abandonment of the premises by the tenant and an acceptance of the surrender by a resumption of possession by the landlord constitute a surrender by operation of law. . . . There is an abandonment of the premises where there is such a relinquishment as justifies an immediate resumption of possession by the landlord.”
At page 1392, of the same work, it is said: “After surrender of the lease the landlord may enter without notice. The question of whether a lease has been abandoned so as to confer a right of re-entry is one of fact to be determined from the acts and intentions of the parties.” [See also 18 Ency. Law (2 Ed.), 313, 354.]
There is an absence of any forfeiture clause in this lease for nonpayment of rent and we agree with appellant that, in the absence of such forfeiture provision, nonpayment of rent does not generally give a right of forfeiture and re-entry. [24 Cyc. 1349, 1392; 18 Ency. Law (2 Ed.), 369; Tarlotting v. Bokern, 95 Mo. 541" court="Mo." date_filed="1888-04-15" href="https://app.midpage.ai/document/tarlotting-v-bokern-8009318?utm_source=webapp" opinion_id="8009318">95 Mo. 541, 544, 8 S. W. 547.]
If this was a suit to evict the tenant for nonpayment of rent that defense would be available to him; but, as shown by Crawley v. Mullins, supra, the absence of a forfeiture provision is not material on the question of abandonment.