Tiernan v. Johnson

7 Mo. 43 | Mo. | 1841

Lead Opinion

Opinion of the Court by

Tompkins, Judge.

This was an action of ejectment brought by the appellees against the appellant. The circuit court gave judgment for the appellees, and to reverse that judgment this appeal prosecuted.

Ejectment.’ Defendant the pre' mises in ques-lease for eight expired made by the guard-wives! undcr the di-rection of the county court»' j^formarriage with the plaintiffs. After the expi guardianship, andbeforethe ®^Pir^tion of plaintiffs had fromPtdefendtIH.e,ld' that whether the lease was voidable or void, the acceptance of rent by the parties, after the expiration of the guardianship, raised an implied tenancy from year to year, which required notice to quit.

On the trial of the cause the plaintiffs proved a title derived from Antoine Dutromble, having married daughters of said Dutromble. As evidence of his title the defendant, appellant here, produced a lease for eight years, made by the guardian of the heirs of said Dutromble, commencing on the 17th May, 1834, made by and with the consent of the county court of St. Louis county, of the said premises herein sued for. The statute of the land does not positively direct how the land of minors is to be leased. Guardians under our statute must necessarily have that power. But often no man would take the land for a single year, where repairs are wanting which would amount to more than one year’s rent. The lease was made under the direction of the county court; and we are disposed to believe it valid. If indeed there has been any improper or fraudulent conduct on the part of the guardian, the plaintiffs have their action against him. At most, even if the lease were void, the defendants, appellants, have not participated in any fraudulent conduct of the guardian, and ought to be regarded as tenants from year to year, they having proved payment of rents from year to year, accepted by the guardians after the determination of the guardianship. r> . . i5Ut ^ not pretended to be proved that there was any misconduct on the part of the guardian, and the lease under which the defendants claim appearing to be made under the direction of the county court, we presume it to be a good lease. The circuit court ought then to have granted, on the defendant’s motion, a new trial. Because, then, that court did . . , . . not grant such new trial, its judgment is reversed, and the cause is remanded to be further proceeded in conformably to this opinion.

Napton, Judge.

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Concurrence Opinion

I concur in reversing the judgment, upon the ground that whether the lease was voidable or void, the acceptance of rent by the parties after the expiration of the guardianship, an-implied tenancy from year to year, which required notice to quit.

Tompkins, Judge.

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Concurrence Opinion

I concur in the amendment of this opinion by Judge Napton.