26 Mo. 216 | Mo. | 1858
delivered the opinion of the court.
The third section of the first article of the act concerning forcible entry and detainer declares, that any person shall be deemed guilty of an unlawful detainer who shall either “ wil-fully and without force hold over any lands, tenements or other possessions after the termination of the time for which they were demised or let to him or the person under whom he claims,” or wrongfully and without force by disseisin obtain and continue in possession of any lands, &c, after demand made in writing for the deliverance of the possession thereof.
It is manifest that the plaintiff intended to proceed under the first clause of this section, and her counsel has assumed in his argument that the defendants came into possession under Evans, who was the plaintiff’s tenant, and held over without the plaintiff’s consent after the termination of the time for which the premises were let to Evans. On this hypothesis the judgment ought to stand ; but there is no evidence that Evan’s term had expired. To maintain the action of unlawful detainer, the plaintiff must be entitled to the possession, and he can not recover for an intrusion on the possession of his tenant. The evidence proved that the defendants came into possession at the invitation and with the consent of the plaintiff’s tenant, and they were not then guilty under the second clause of the section. The instruction asked by the defendants ought to have been given.
The other judges concurring, the judgment will be reversed and the cause remanded.
