Murray v. Armstrong

| Mo. | Oct 15, 1847

Scott, J.,

delivered the opinion of the Court.

Armstrong brought an action of ejectment against Murray in the Court of Common Pleas of St. Louis county., to recover possession of a small tenement in the county in which he recovered judgment.

William Bailey was the owner of the lot in controversy, and by a deed indented, executed by his agent, P. Dillon, leased the same to Murray on the 15th September, 1842, for 5 years. Among other things, Murray stipulated to fence the lot on or before the first May, 1843, and it was' further agreed that if Murray or his assigns failed to keep and fulfil the covenants and stipulations contained in the deed, it should be the right of the said Dillon or his assigns to enter upon the demised premises, and to hold the same discharged of the lease. The deed describes Dillon as agent for William Bailey, and recites that, “the said Dillon, for and in consideration, &c., hath leased, demised and to farm let, unto the said Thomas Murray, &c.,” and is signed by Dillon in his own name only.— Dillon testified that he executed the lease for Bailey, under a power of attorney, and that Murray entered on the demised premises. The fence was not made within the'stipulated time, but neither Dillon nor Bailey ever availed himself of the right of re-entry. . On the 29th December, 1845, Armstrong notified Murray that the lease had been forfeited, and required him to yield up the premises by the fifth of January following, or suit would be brought. On the 23d February, 1844, J. W. Nelson commenced suit by attachment against Bailey, which was levied- on that day on the lot in controversy. This suit was prosecuted to final judgment, (Bailey appearing to the action,) which was rendered on the fifth day of March, 1845, and on the 23d of April of that year,„the lot was regularly sold by the sheriff to J. F. Darby, who conveyed to Armstrong the appellee.

Murray asked the court to instruct the jury as follows:

“If the jury believe from the evidence, that defendant had possession of the premises at the time the attachment was levied on which the judgment was rendered, under which the premises were sold to Darby, and continued such possession until Armstrong purchased, such possession is noti ce to all the world of Murray’s title, and Armstrong took the premises subject to the lease of the defendant.

“To constitute possession, it is not necessary that a party actually live upon the premises.

“The power to recover for breach of the covenants in the lease being only reserved to P. M. Dillon and his assigns, Armstrong cannot take advantage of it and avoid the lease.

“The sale by the sheriff, and the sheriff’s deed to Darby, operate only to convey Bailey’s interest in the land in question, and if the jury find that Murray held a lease of the same land, the term of which was unexpired at the time of the commencement of this action, and that Armstrong had notice of that fact before the purchase, they will find for the defendant.

“Possession by Murray of the premises at the time of the sale to Armstrong, is sufficient notice of Murray’s interest in the premises. Dillon, as the agent of Bailey, had power to make a lease of the premises in question, but had no right by law to reserve the right of re-entry to himself for any forfeiture of said lease, and therefore should the jury find that Murray had not complied with the terms of his lease, the remedy for the injured party is upon the covenant in his lease, and not by ejectment.

“If there was a forfeiture on the part of Murray, such as Bailey might have taken advantage of before the title passed out of him, this does not help the plaintiff in this suit, for he was a stranger to the covenant, and the jury will find for the defendant.

“If the jury find that the terms of the lease were not complied with by Murray, yet Armstrong cannot take advantage of non-compliance in this form of action, and Murray is still a tenant from year to year, and is entitled to six months notice to quit the premises, before the action of ejectment can be sustained against them.

“If the jury find that the letter of covenant in the lease has been complied with, the plaintiff cannot recover.

“The jury are instructed that the notice to quit under date December 29, served upon Murray, is a recognition of his tenancy, and that such notice is not sufficient as the foundation of this action.”

The court refused these instructions, and the defendant Murray excepted. The court than gave the following instruction to the jury:

“If the jury find from the evidence that the defendant failed to put a fence upon the premises leased by him, composed of posts and rails, posts and palings, posts and planks or palisades, or rails alone laid up in the manner commonly called a worm fence, or of turf with ditches on each side, then the conditions of the lease have not been complied with.”

The defendant Murray excepted to this instruction — the jury found a verdict for the plaintiff Armstrong, and a motion for a new trial having been overruled, the cause comes here by appeal.

Nothing is clearer than That the lease made by Dillon to Murray was void. It was the deed of Dillon, not that of Bailey. Story on Agency, sec. 148. Murray entering under a void lease, became tenant at will, and being a tenant at will was entitled to notice to quit before the commencement of the action. Roscoe oifreal actions, 526. No such notice was given. The notice given in this cause was no notice to quit within the meaning of the law. Tenancies at will, as they may be created without writing, are not within the statute regulating the registry of conveyances.

The other Judges concurring,

the judgment will be reversed.