| Mo. | Apr 15, 1888
Action of ejectment; answer, a general denial. The defendant was owner of a life estate in the premises with remainder to her two daughters. She owed the plaintiff three hundred dollars, for which she had given him her note. Plaintiff’s title was a lease, read in evidence, from defendant to plaintiff, dated August 10, 1878, to begin at that time, and end when the rent received should pay the three hundred dollar note due from defendant to plaintiff. No rate of rent was agreed upon, but plaintiff was to sublet the premises for the best price he could get, and was to obtain no more than thirty-five dollars per month, and the excess, if any, was to be paid to defendant. Plaintiff testified that, shortly after the lease was executed, the premises became vacant, and he told defendant to move in and he would be lenient. It further appeared that she was to pay the plaintiff thirty-five dollars per month on his debt. Plaintiff further testified that he had demanded the rent of the defendant, but had never demanded the possession of the premises, but had sued
Defendant testified that she signed the lease; did not know what it was ; plaintiff told her it was only a renewal of the three hundred dollar note for six months ; after the house had been vacant some time, plaintiff told her to move in, and he would not go by the lease, and told her she could pay him as she was' able; had lived in the house ever since; plaintiff never demanded possession, but wanted his note paid. On cross-examination she said she understood she was to pay plaintiff thirty-five dollars per month. She could not pay that, •and he said he would take what she could pay.
Records were introduced showing judgment, on the note, sale of the premises in excess of homestead under execution to plaintiff for two hundred and twenty-five dollars, and sale, under pluries execution, of homestead to Laughlin for fifty dollars, and judgment in favor of ■defendant in an action of ejectment brought by him. The jury, under the instructions of the court, found for the defendant.
The only theory upon which plaintiff could have recovered was that the lease from the defendant to the plaintiff was a subsisting contract which had not been abandoned. Conceding this to be so, the defendant
In ejectment plaintiff cannot recover without showing that at the time his suit was commenced he was entitled to the possession of the premises sued for. The fact that rent is due, has been demanded, and is unpaid, does not extinguish the relation of landlord and tenant, determine the tenant’s term, or give the landlord a right of entry; the only right these facts confer upon the landlord is to institute a summary proceeding before a justice of the peace against the tenant, requiring him to. show cause why possession of the property should not be restored to the plaintiff. R. S., secs. 3097, 3098. If the tenant appears and shows that the rent has been paid, or on the hearing of the cause tenders the amount of the rent due and costs, that ends the proceeding, and the term of the tenant continues. If he does neither, then the justice may render judgment in favor of the landlord for the recovery of the premises, and that judgment terminates the tenancy. R. S., secs. 3098, 3100.
The plaintiff having failed to show that the defendant’ s tenancy had been determined in any manner, failed to show that he was entitled to the possession of the premises, at the time his suit was commenced, and could not recover. So that whatever error may have been committed on the trial, he is not prejudiced thereby.
The judgment for the right party and is affirmed.