122 Mo. App. 164 | Mo. Ct. App. | 1906
Plaintiff sued defendant before a justice of the peace to recover possession of a farm in DeKalb county. In the complaint filed it is alleged that on and before March 1, 1905, plaintiff was in the lawful and peaceable possession of the land described and that on the date mentioned “defendant wrongfully and without force by disseizin, obtained possession of said premises and has ever since held and still holds possession thereof wrongfully and unlawfully.” A trial of the cause in the circuit court on appeal resulted in a judgment for defendant and plaintiff appealed.
Plaintiff’s evidence tends to show that on February 6, 1903, plaintiff claiming to be the owner of the land leased it in writing to J. E. Rhodes for the year beginning March 1, 1903. Rhodes agreed to pay as rental |25 in money and one-half of the corn grown and plaintiff “reserved one-half of the stalk field.” The lease was signed by both parties. Rhodes occupied and tilled the farm during that year, paid the rent as agreed and in February, 1904, agreed orally with plaintiff to> rent the farm for another year on the same terms the written lease provided for the year about to close. He continued in possession during the ensuing year and raised a crop of corn but in November, 1904, refused to give plaintiff half of the corn and stalks on the ground that Mr. Pitch, who was acting as the agent of Mr. E. H. Lahrman,
The evidence introduced by defendant shows this state of facts. Rhodes first acquired possession of the farm about March 1, 1902, under an oral letting made by the agent of Oliver Mills who was then in possession under claim of title. The agreement provided that Rhodes should have the place for one year beginning March 1, 1902, for which he was to pay a money rental of $140. He gave his note for this amount to Mills, entered into possession, raised a crop, paid the note as agreed and in February, 1903, agreed with the agent of Mills to rent the farm for another year and to give his note for $140 in payment of the rent for that year. Shortly after this, but before the 1st of March and while he was holding as the tenant of Mills, Rhodes
In February, 1904, Lahrman, the grantee of Mills, without the knowledge or consent of plaintiff leased the farm to Rhodes in writing for the year beginning March 1, 1904, for a rent of one-half the crops to be grown and in January, 1905, Lahrman leased the farm to the defendant Perkins who succeeded to the possession of Rhodes in the following month.
This action is prosecuted under the provision of section 3321, Revised Statutes 1899, that “when any person wrongfully and without force by disseizin, shall obtain and continue in possession of any lands, tenements or other possessions and after demand made in writing for the delivery of the possession thereof by the person having the legal right to such possession, his agent or attorney shail refuse or neglect to quit such possession, such person shall be deemed guilty of an unlawful detainer.” The main object of the enactment comprised in the chapter of the statute relating to Forcible Entry and Detainer is to preserve the peace by preventing those not in the actual possession of real property from resorting to physical force or threats or intimidation of any kind to gain possession of the property from the one in the actual enjoyment thereof. It matters not that the claimant out of possession may have the better right to-immediate possession if his title or right are not recog
The action of unlawful detainer presupposes that the defendant obtained possession without force but wrongfully refuses to surrender it on demand to the person having the legal right thereto. Such refusal to make restitution is in its nature an exhibition of force and consequently is constructively a forcible entry for which an action will lie under the statute in favor of the aggrieved party. Whether the action is for forcible entry and detainer or for unlawful detainer it is obvious the principal object of the statute would be defeated should a defendant be permitted to justify his aggressive physical acts by showing that he did nothing more than to recover possession of his .own. The preservation of peace furnishes the reason upon which is founded the statutory prohibition against inquiring into the merits of the title. [R. S. 1899, sec. 3343.]
Our inquiry in the present case is not concerned with the question of who had the better title or right
The burden of proof was on plaintiff to show that Rhodes was his tenant and he has failed completely to sustain that burden. It is undisputed that Rhodes was the tenant of Mills in February, 1903, and as such was in possession of the premises and though plaintiff says he did not know that fact he did know Rhodes was there as a tenant under a claim of title adverse to that claimed by plaintiff and consequently admits that he entered into a contract of lease with one who was prohibited by law from making that kind of a contract. Section 4112, R. S. 1899, provides that “the attornment of a tenant to a stranger shall be void and shall not in any wise affect the possession of his landlord unless it is made first Avith the consent of the landlord or second pursuant to or in consequence of a judgment at law or a decree in equity or sale under execution or deed of trust or third to a mortgagee after the mortgage has been
Rhodes remained the tenant of Mills during the year beginning March 1, 1903, notwithstanding his attempt to accept plaintiff as his landlord and his possession was the possession of Mills. Nor was this relation affected by the fact that during that year plaintiff exercised some acts of ownership over the premises such as repairing fences, preparing some of the land for ploAving and receiving a portion of the crop raised.. Plaintiff acknoAvledged the possession of Rhodes and the acts mentioned were in no sense performed in hostility to that possession but in recognition thereof. They constitute no break in the possession of Mills. As no change Avas made in the tenancy of Rhodes prior to January, 1904, the written lease made in that month by Lahrman, the grantee of Mills, was the lease under which Rhodes held the premises during the year beginning March 1, 1904, and therefore Rhodes was the tenant of Lahrman in February, 1905, when he abandoned the premises and was succeeded as tenant by defendant.
It thus is apparent that under plaintiff’s own statement of the facts he cannot maintain an action of unlawful detainer against defendant and the learned trial judge would have been justified in peremptorily directing a verdict for defendant. In this condition of the case it is unnecessary to discuss the errors claimed by plaintiff in the admission of evidence offered by defendant and in the instructions given. The judgment is affirmed,