60 Mo. App. 497 | Mo. Ct. App. | 1895
Lead Opinion
This case, as to its salient facts, is quite complex, but is simple enough as to the governing legal principles by which the rights of the parties in respect to the subject-matter thereof are to be determined. It indisputably appears from the record
The decisive question in the case which is presented for our determination arises out of the action of the trial court in the giving of an instruction for the plaintiff which, in effect, told the jury that, if they believed that for a long time prior to June 20, 1892, the plaintiff was in the lawful and peaceable possession of the premises described in the complaint and that plaintiff on said day leased such premises to defendant for a period of six months and placed him in possession thereof and afterwards, on or about August, 11, 1892, defendant commenced paying rent for said premises to Northup and Pitt and had since remained, refusing to pay to plaintiff or to deliver up to her the premises, then she was guilty of unlawful detainer, unless they further believed that plaintiff either consented to the attornment of the defendant to Northup and Pitt, or, unless the latter obtained title pursuant to, or in consequence of, a sale under a deed of trust executed by plaintiff or someone who derived title through her.
The doctrine of attornment grew out of the peculiar relations of landlord and tenant under the feudal law. By the common law, attornment was necessary to give an assignee of the reversion a remedy against the tenant. Sheets v. Selden, 2 Wall. 177. An attornment is a recognition of an existing lease by a new landlord. Lindly v. Dakin, 13 Ind. 388; Austin v. Ahearne, 61 N. Y. 6. An expressed or implied promise to pay rent, or the payment of rent, as such, is sufficient evidence of an attornment. Fisher v. Deering, 60 Ill. 114.
The rule is elemental that a tenant can not deny
And our statute — section 6373 — expressly declares that the attornment of a tenant to a stranger shall be void and shall not in anywise affect the possession of his landlord, unless it is made, first, with the consent of the landlord, or, second, pursuant to or in consequence of a judgment at law, or a decree in equity, or a sale under execution or deed of trust, or, third, to a' mortgagee after the mortgage has been forfeited. It is further provided in our statute concerning uses and trusts, section 3948 — that the attornment of a tenant to a stranger shall be void, unless it be with the consent of the landlord of such tenant, or pursuant to, or in consequence of, the judgment of a court of law, or the order or decree of a court of equity. Recurring to the provisions of section 6373, previously quoted, and it will be observed that one of the exceptions contained in the saving clause of that section is where there has been “a sale under a deed of trust.”
The contention of the plaintiff is that this case is not within the saving clause of either of the statutes referred to, because the deed of trust under which Northup and Pitt claim title was not executed by the plaintiff, or anyone for her, but by Quimby before the date of his deed to plaintiff. Involved in this contention is a question of statutory construction. Plaintiff claims title under a deed directly from Quimby, while Northup and Pitt claim to have acquired title under a deed of trust executed by Quimby long before the date of plaintiff’s deed, so that, while both titles emanated
In Tilghmann v. Little, 13 Ill. 239, it was held that, if the possession was obtained from plaintiff,
In the light of the foregoing authorities, it seems to us that what is meant by the words of the saving clause in section 6373, already quoted, is a sale under a deed of trust by which the purchaser is placed in privity with the landlord’s title. Or which is the same thing, the deed of trust must have been executed by the landlord, so that a sale thereunder extinguishes his title, and, consequently, that of his tenant. This con
It is thus made clear that a derivative title will not support an action for the recovery of possession against an occupying tenant under one claiming title to the premises, unless the plaintiff has acquired that title by deed. It inevitably follows from this that,when the occupying tenant refuses to pay rent to the original lessor and attorns to one who has not by deed acquired the title of his lessor, though he may have acquired the fee to the premises, such attornment is void and affords him no protection in an action by the original lessor against him for the recovery of the possession. The sale and purchase under a deed of trust will not justify the occupying tenant in attorning to the purchaser, unless the sale be tantamount to an eviction. An eviction by one having a title paramount to that of the lessor under whom the tenant was let in possession discharges the rent. But a sale under a deed of trust must pass the title of the landlord to the purchaser. It must extinguish his title, for, unless it does so, it is not
The title derived by Northup and Ritt under the Quimby deed of trust was adverse to that of the plaintiff, so that the attornment by the defendant to them was not a case within the saving clause of the statute and was therefore void.
But there is still another reason why the defendant’s construction of the statute can not be sustained. The statute forbids the merits of the title to be inquired into in an action for unlawful detainer, though evidence or proof of rights under derivative titles is admissible. R. S., secs. 5111, 5123. In such actions the matter of possession can only be litigated. In this case there is evidence tending to show that the plaintiff in ignorance of the existence of the deed of trust and in good faith made lasting and valuable improvements on the premises in dispute. Now, it is likely true that, if such be the fact, in case an appropriate action were brought against her by the holder of the adverse paramount title and that on the strength of that title a judgment were recovered against her for the possession, the court rendering such judgment, would allow-her to recover the reasonable value of her improvements, before requiring her to deliver possession. To turn her out of possession in this action would be to deny her the right to recover for such improvements. This concession is necessarily involved in the defendant’s contention, to uphold which might result in the grossest injustice to plaintiff. A construction of the statute under which such a result is probable can not be countenanced. It follows from these considera
It is not perceived that the trial court erred in rejecting the defendant’s offers of evidence. It is true that such evidence tended to show that the title of Northup and Pitt, to whom .defendant attorned, was paramount to that of the plaintiff. But it also showed that it was adverse to that of the plaintiff. It was not shown that this title was consistent with that of plaintiff or that the holders, by its acquisition, were placed in privity with that of the plaintiff. The rejected evidence in no way tended to show that Northup and Pitt had acquired the plaintiff’s title by purchase, directly or indirectly, from him, or that hi's title had expired or run out, but, instead thereof, did tend to prove that the adverse paramount title had its inception in the Quimby deed.of trust long anterior to the execution and delivery of the deed under which plaintiff claims title and, therefore, according to the views of the law already by us sufficiently expressed, such offers of evidence were properly rejected.
The judgment will be affirmed.
Rehearing
ON MOTION BOB BEHEABING.
Our statute, sections 4645, 4646, provides that, when there shall be a judgment of dispossession given in an action for the recovery of the possession of real estate, in favor of a person having a better title thereto against the person in possession, such person may recover compensation for the improvements, provided he entered into the possession believing he had good title and made the improvements in good faith under the belief that he had good title. It has been held that the constructive notice implied from the registry of an instrument affecting the title to real estate does not preclude a recovery under the
The North Carolina cases of Wharton v. Moore, 84 N. C. 479, and Parker v. Banks, 79 N. C. 480, are not in point, for the reason that section 481 of the act of 1871-2 of that state expressly provided that the right of an innocent defendant to recover for improvements shall not apply to any suit brought by a mortgagee against the mortgagor to recover the mortgaged premises. No such exception, as it seems, is to be found in our statute. The ruling in the cases in this state which we have cited is conclusive in us, and, if a different rule prevails in other jurisdictions, as the plaintiffs contend is shown by their citations, we can not follow it.
The trustee’s deed does not show that plaintiff gave the bond authorized by section 7079, as is stated by defendant’s counsel. It does not appear whether the grantor in the deed of' trust, or his assigns, gave such bond. It may have been one or the other. The recitals in the trustee’s deed, if admissible, do not show that the plaintiff gave the statutory bond referred to, nor can this fact be fairly inferred from the recitals. Nor do they establish any new relation between plaintiff and Northup and Pitt. If, as is virtually conceded, plaintiff held adversely to Northup and Pitt, prior to the decree in the suit for the injunction, she so continued thereafter, for it nowhere appears that plaintiff recognized the title of the latter by giving the bond. Hence it follows that the argument built upon this erroneous assumption is without force.
Suppose defendant had refused to attorn to Northup and Pitt, and they had sued him for the recovery of the possession before a justice of the peace, having first exhibted to him the deed under which they claim, could they have recovered? Clearly not, and for the reason that the statute requires that, upon a trial in such case, the plaintiffs must show that the party in possession leased from a party claiming title to the premises by deed, and that the plaintiff has acquired the title of the original lessor by deed or deeds regularly acknotvledged. R. S., secs. 6397, 6398, 6399. Neither the deed of trust nor the trustee’s deed to Northup and Pitt show that they have acquired the title of the plaintiff. These deeds do not place Northup and Pitt in privity with the title, of the plaintiff and consequently such action would have failed.
Would they be in any better situation if the defendant, who is the plaintiff’s tenant, should attorn to them? It must inevitably follow that they would not. If they could not recover on their title, certainly
It is true the plaintiff and Northup and Pitt each deduce their title from Quimby — a common source; but, since such titles are independent and adverse, it is not within the jurisdiction of a justice, nor of this court, to inquire into their merits. R. S., sec. 5111; Const. Mo. sec. 12, art. 6.
We can not sustain the contention that the trustee’s sale was made pursuant to, or in consequence of, a decree in equity, as provided in section 6373, Revised Statutes. The record offered shows no more than that plaintiff filed a petition praying that Northup and Pitt be enjoined from making sale of the lot in dispute, under their deed of trust, which' was by the court denied; but we are not of the opinion that the subsequent sale, under the deed of trust, was pursuant to, or in consequence of, a decree in equity, within the meaning of the statute. The court did not order the sale, nor was it made in pursuance of any order. Whether the decree dismissing the petition would estop plaintiff from setting up the matters embraced within the issues upon which it is based, in an appropriate action to try title, or to recover the value of the improvements, is a question that does not arise in this case.
Whether plaintiff went into possession in ignorance of the deed of trust is unimportant in the determination of the decisive questions in this case, and hence the erroneous statement of that fact by us harms no one. The motion is overruled.