43 Mo. 471 | Mo. | 1869
delivered the opinion of the court.
On the 5th of June, 1853, Philip Rock made to Ezra Thomas, trustee for Charlotte White, a lease of a city lot in St. Louis for sixteen years and five' months, reserving the sum of $78.75 annually for ground rent, payable quarterly, and stipulating that the lessee should pay all taxes and assessments for grading, paving, etc., and at the end of the lease to have the right to remove all buildings and improvements erected on the lot. The lease also had a clause of forfeiture upon non-fulfillment of its conditions. Mrs. White and her husband erected a building upon the lot, and, in March, 1861, leased it to defendant H. Kroegmeyer, for three years, at $400 a year, who was to pay the ground rent out of that sum. In the meantime Philip Rock had died, and Henry Zumhalen had been appointed curator of his minor children. After Mrs. White had removed to Jefferson county, Zumhalen sued out a landlord’s writ of dispossession for non
On the 27th of December, 1861, a compromise of the whole matter was made between Mrs. White, Zumbalen, and Kroegmeyer, by the terms of which Zumbalen was to give to Kroegmeyer a lease of the premises for two and a half years from the first of January, 1862, upon the same terms as the original lease ; the forfeiture was to be waived. At the end of the two and a half years, Mrs. White was to have possession under her original lease; and as a consideration for Kroegmeyer’s lease, he was to cancel the indebtedness of Mr. and Mrs. White to him, and give up their notes, and pay the back and accruing ground rent. This agreement was carried out on behalf of Mrs. White— Zumbalen, by her consent, executing the lease, with the stipulation as to her notes indorsed on the back; and Kroegmeyer enjoyed the premises for the full term, without disturbance, his lease expiring July 1, 1864.
The animus of Kroegmeyer, as afterward fully developed, became apparent in 1863, in a fraudulent attempt then made to procure a transfer to himself of the whole interest of Mrs. White in her leasehold estate. As the beneficiary of their deed of trust of 1860, to secure the indebtedness of Mr. and Mrs. White to him, which had been fully paid by the two-and-one-half-years’ lease, he procured a trustee’s sale of the property, which was bid off by a third party and conveyed to another, and by him to Kroegmeyer. Zumbalen’s agent attended the sale, exposed the fraud, and “notified all persons present that the debts were paid.”
In August, 1864, just after the expiration of the two-and-one-half-years’ lease, Kroegmeyer holding over his term, a suit of unlawful detainer was instituted against him in the name of Zumbalen, though at the instance of Mr. and Mrs. White, for their benefit and at their expense. This suit resulted in favor of
The record discloses the steps by which he obtained th,e property. On the 13th of April, 1866, Kroegmeyer, with his attorney, goes to Mrs. Zumbalen and settles the suit. He pays her the ground rent due; she gives him a.receipt in full, with an agreement to dismiss the suit, and executes to him the lease. Everything was done by Kroegmeyer’s attorney, and it was then agreed that notice of forfeiture should be served on Mrs. White, which was accordingly drawn under date of the 16th, three days after, by the same attorney, and served upon Mr. and Mrs. White, in Jefferson county. Mrs. Zumbalen testifies that on the 13th of April, 1866, Kroegmeyer and J. J. McBride came to her house and settled the suit of Zumbalen; paid her the ground rent; paid the costs of court; and she signed the notice prepared by J. J. McBride for forfeiture of the lease, which was served on Mr. and Mrs. White ; and she dismissed the suit and executed a new lease of the property to Kroegmeyer. Did not consult with White and wife before dismissing the suit.
The foregoing" are the main facts developed by this record, and seem to be clearly established. There are other questions of fact in regard to the regularity of the judgment of ouster that was compromised, and the original legality of the trust deed, but it is unnecessary to consider them. The proceeding is upon a petition in the nature of a bill in equity, charging fraud upon Kroegmeyer, and asking that he be adjudged to hold the lease for the use of the plaintiff, for an account, etc. There is no question
It seems strange that the action of forcible detainer, prosecuted by Mrs. White in the name of the curator, was not at once decided in her favor, unless Kroegmeyer succeeded in befogging the tribunal with the fraudulent deed he had obtained through the sale upon the satisfied deed of trust; and it seems also strange that the matter could have so hung along in the Land Court, and I can only account for it from the fact that the plaintiff, Thomas, gave the matter no attention, that his cestui que trust resided
The consent of Mr. and Mrs. White to the short lease to Kroegmeyer was not a surrender of the original lease, even if the cestui que trust had the power to surrender it; but the new lease, being made for her use, was a clear recognition of her rights under the old one. “A surrender by implication must be in conformity with the intention of the parties. A surrender will not be implied when it is obvious that the second lease was intended to be beneficial, and that the lessee was not to lose any rights he possessed.” (Van Rensselaer’s Heirs v. Penniman, 6 Wend. 569.)
Though nominally Kroegmeyer was the tenant of Zumbalen, yet the interest of the latter in the lease was far less than that of Mrs. White. The plaintiff, as her trustee, was Kroegmeyer’s equitable landlord. The term covering that of Kroegmeyer was his ; a small portion of it, by consent of his cestui que trust and for her use, was granted by the curator to Kroegmeyer; and the rules that apply to the relation of landlord and tenant ought, in an equitable action, to be applied to him and Mrs. White. Having assumed the relation of tenant, he cannot escape it by any fraudulent trick or contrivance. He seems to have abandoned his claim to the property by virtue of the deed of trust, and seeks to obtain it through the curatrix of the original lessor’s heirs, and, having obtained a lease from her, fancies himself shielded from any claim from Mrs. White. But what right had Mrs. Zumbalen, without the consent of plaintiff or Mrs. White, to give him a lease? In holding over Ms term he elects, so far as he had power to elect, to continue in possession under the conditions of his lease. In paying the back ground rent he only did his duty. The conditions of Ms lease, so far as the curator is concerned, should measure his obligations while holding over. (Quinette v. Carpenter, 85 Mo. 502; Hunt v. Bailey, 39 Mo. 257.) By thus paying the ground rent he saved the original lease from forfeiture, and thus rendered the subsequent attempt to forfeit it a fraudulent sham.
Kroegmeyer’s present lease can avail him nothing as against the plaintiff. The heirs of Rock had in equity no estate to demise.
Defendant’s counsel, in resisting this claim, contend that if a lessee forfeits his term, it is no fraud for a stranger to assist in having the forfeiture declared, and afterward himself purchase the remainder of the term or become a tenant of the landlord. There might be plausibility in the position in regard to a stranger. 'But Kroegmeyer holds no such place. He was a tenant of plaintiff, in equity, and suffered all the defaults upon which the several forfeitures are based; and the misfortunes of the plaintiff’s cestui que trust are chargeable alone to his misconduct. It would be contrary to every principle of equity to permit him to profit by his own wrong. ' Chancellor Kent (in Holridge v. Gillespie, 2 Johns. Ch. 80) lays it down as a general principle, pervading all the cases, that “if a mortgagee, executor, trustee, tenant for life,” etc., “ who has a limited interest, gets an advantage by being in possession or behind the back of the party interested in the subject, or by some contrivance in fraud, he shall not retain the same for his own benefit, but hold it in trust.”
In Jones v. Kearney, 1 Dru. & War. 134, the plaintiff was entitled to an annuity out of a leasehold; and defendant, having purchased the lease and being under obligation to pay both the annuity and rent, neglected to do so, suffered ejectment, and took
These two cases, among the numerous ones that might be cited, recognize the clear rights of the plaintiff in this suit. The Circuit Court should have held the present lease of Kroegmeyer to be taken for the use of plaintiff, and ordered an account of what was due him or Mrs. White as tenant. Or it might have set aside the fraudulent sale and trust deed through which Kroegmeyer obtained a deed of plaintiff’s leasehold, set aside both forfeitures and the lease of Mrs. Zumbalen to him, and declared the original lease to plaintiff in force.
The judgment is reversed and the cause remanded.