6 Mo. App. 297 | Mo. Ct. App. | 1878
delivered the opinion of the court.
This is a suit for partition of a lot and a building thereon. Shepard, being the owner in fee of a vacant lot on Fourth Street, in St. Louis, on February 15,1864, leased it to the respondent, Simmons, for the term of fifty years, at a rent
It appeared that the respondent erected a building upon the land according to the terms of the lease, and that, to enable him to do so, he obtained in 1864 a loan of $37,000 from Crickard and Doyle, which was secured by deed of trust on the leasehold property; that by agreement, the.net rents of the building were used to pay off this encumbrance ; and that the respondent managed the property, paid off this debt, and afterwards continued to collect the rents and distribute the money among the lessees according to their interests, rendering annual accounts to his co-lessees, and crediting himself with his share of the rents according to
It is contended by the respondent that there was here a merger pro tanto of the leasehold estate in the fee when the reversion was conveyed to the respondent, and also when the respondent conveyed one-half of the reversion to Crick-’ ard, who then held one-third of the leasehold for the joint benefit of himself and Doyle. But if this is allowed, for the sake of argument, it is not easy to see how it advances the respondent’s position or entitles him to the decree which he obtained. If there was such a merger, this certainly did not destroy the leasehold estate, as such. There were other lessees, and merger “pro tanto” could not destroy their estate. They were tenants in possession under the lease, while the respondent, on the theory supposed, is the landlord, owning an individual interest in the reversion. To make the premises fit the conclusion, it ought to be assumed that there was a merger, not pro tanto, but a merger of the entire leasehold estate in the fee. But the two estates did not “ meet, without any intervening estate, in the same persons,” and it cannot be pretended that the leasehold estate, as such, was extinguished. There was an outstanding estate in other persons, as there was in Johnson v. Johnson, 7 Allen, 196. The respondent could not be reversioner and lessee where he alone was concerned, but there was no incompatibility between his reversion and the tenancy of such of the appellants as had no reversionary interest. It is not every union of estates, even, that creates merger; and it is because there would be a sacrifice of the rights of persons in property that the doctrine has no operation where there is an intervening estate. Miller v. Talley, 48 Mo. 504.
The respondent must be held to one consistent position throughout. If there was a merger, he is then to be re
It is not pointed out what words of the statute justify such a proceeding. The first and third sections allow persons to be brought in who are interested in the property, and their various rights may be described; the fourth is more imperative; but these sections sanction no such proceeding as the present, which not only mingles different causes of action, but joins persons, not as parties incidentally interested, but as defendants against whom relief is principally sought, who have no interest in common, and
But if the words of the statute were ambiguous, it would not readily be conceded that a construction could be put upon them which would deprive the owners of an intervening estate of their rights. If the well-settled principles of law were adhered to, the reversioner would bring a suit for partition of the reversion, and the owner of an interest in the leasehold for partition with his co-lessees. In either case the partition would be of their common property, and the rights of all in that property would be carefully preserved. But the authority must be very plainly expressed that would warrant a court, in a mere action for partition, whose basis is the division, not the extinguishment, of rights, in doing away with an intervening estate, rendering a contract like the present perpetual lease nugatory, and making impossible either the division or the purchase of the leasehold property. No such consummation is necessary in order to enable the respondent to deal with his interests with perfect freedom. He may obtain partition of both leasehold and reversion, and in a far more equitable way than the present, since the rights of all parties would be carefully regarded. But the fact that the respondent has acquired a reversionary interest cannot entitle him to abridge the rights of his co-lessees; and it cannot in reason be pretended that that is not an essential abridgment of their rights which deprives them of any chance of partition in an estate whose preservation may be of extreme importance to them, or of any opportunity of purchasing that estate. This question involves the making of a general rule, and it is important
It is contended by the respondent that the case of Reinhardt v. Wendeck, 40 Mo. 597, is authority for his present position. But the court there certainly did not decide any point that concludes the present case. The court below had sustained the demurrer, and the Supreme Court reversed the decision. There was no final action, and no decision as to what action would be proper, except that the plaintiffs should have been allowed to go to trial on their petition. There is no discussion and no decision as to what would have been appropriate action in reference to the life-estate. If the decision is authority for any particular point, it is that the fact that one reversioner is in possession, enjoying a life-estate, does not prevent his coreversioners from having partition against him as to the reversionary interest. If the decision goes to this extent, it certainly goes no further.
The judgment is reversed, and leave should be given to the respondent to amend his petition if he so elects.