45 Mo. App. 629 | Mo. Ct. App. | 1891
— This is an action for forcible entry and detainer for the recovery of the possession of eighty acres of land in Barton county. Prom the defendant’s statement of the case, which is substantially correct, it appears that the defendant was occujjying the premises sued for, as tenant of A. D. Morgan, under a written agreement, for a term commencing January 31, 1883, .and ending March 1, 1885. When summons was served on the defendant Graham, he immediately notified his landlord, Morgan, and requested him to defend the suit, which Morgan agreed to do, and did do, employing the law firm of Buler & Timmonds for that purpose. On trial before the justice of the peace, judgment was rendered in favor of plaintiff, and an appeal was taken to the circuit court of Barton county, Morgan signing the appeal bond. The case was tried three times in said circuit court; at said trials plaintiff had verdict once and the defendant twice ; but, for one reason and another, new trials were granted, and the plaintiff removed the cause to the circuit court of Yernon county on change of venue. At the November term, 1889, of the Yernon circuit court, the case was again tried, and the defendant again had verdict and judgment in his favor, and it is from that judgment that appellant has appealed to this court. The defendant Graham remained in possession of the premises in dispute, as tenant of Morgan, till, about April 1, 1887,
Plaintiff filed motion for a new trial, complaining of alleged errors committed by the court at the' trial, and also afterward filed a motion for judgment, notwithstanding the verdict of the jury, basing his motion upon the stipulation hereinbefore mentioned. Both of said motions were, by consent of parties, continued till the May term, 1890, of the Vernon circuit court, when, on the thirteenth of May, M. T. January, an attorney, appeared in open court and filed a second stipulation for judgment in favor of plaintiff, signed by Graham, at the same time announcing to the court that the stipulation was handed to him by the plaintiff Walser, and that it was at his, Walser’s, instance and request he was filing the same, and that he had not seen the defendant Graham since the trial. In the meantime, Graham had left the state, and, as we supposed, had gone to Colorado. On the twenty-third of June, 1890,
While all the foregoing motions were pending, A. D. Morgan, who was Graham’s landlord, and who was at that time still in possession of the land sued for, and who had at his own expense been defending the suit from the beginning, and who was Graham’s bondsman in this suit, made written application, under oath, to the circuit court to be permitted to continue the defense of the suit in the name of the defendant Graham, or to be substituted as party defendant in the place and stead of Graham, and proposed to give any bond the court might require. Plaintiff thereupon filed his motion to strike out said application of said Morgan for the reason that it was not a proper paper to be filed in the case. The court overruled said motion to strike out; sustained the application of Morgan, and made an order permitting, authorizing and empowering him to continue the defense of 1he suit in the name of the defendant Graham ; but required him to give bond to indemnify Graham against, all costs and damages occasioned by the continuation of this suit, and to abide by, pay and satisfy any judgment which might finally be rendered against said Graham in said case. The bond was given and approved by the court.
I. The principal question argued by counsel, both here at the bar and in their briefs, was as to the propriety of the action of the trial court in respect to the 'stipulations presented to it by the plaintiff. The underlying question in the case, as we think, is whether the defendant Graham, the tenant of Morgan, the person under whom he held, could, after having given notice to the latter that a summons in the action had been served upon him, make a valid contract with the plaintiff that judgment be rendered in favor of plaintiff, and against defendant in the cause, without the assent of
In the action of ejectment where the landlord defended in the tenant’s name, it has been decided that .a cognovit actionem of the tenant will not be acted upon by the court to the prejudice of the landlord. Kellogg v. Forsyth, 24 How. 186; Doe v. Franklin, 7 Taun. 9. And no reason is perceived why it would be different in an action of this kind. As neither the first nor the last cognovit which the plaintiff presented for the action of the court was executed with the assent of Morgan, the landlord, for that reason, if for no other, the rulings of the court in respect thereto have our approval.
Again, a tenant cannot dispute the title of his landlord. Pentz v. Kenster, 41 Mo. 447. But if the plaintiff’s position is correct, the tenant can, by suffering judgment for the possession to go in favor of plaintiff in an action like this, place another in his shoes who can. This, in its practical effect, would be an assignment of the tenant’s term without the assent of the landlord, which the statute expressly interdicts. Sec. 3075. Nor is any valid objection perceived to the action of the court in permitting Morgan to continue the defense of the action in the name of the defendant, nor requiring him to enter into a good and sufficient bond to defendant to pay all costs and damages occasioned by the continuation of the suit, and to pay and satisfy any judgment which should be finally rendered against him in the cause.
II. As to the plaintiff’s contention in respect to the action of the court in admitting evidence, it is
III. While the mode of examination pursued by defendant’s counsel was subject to some criticism, we cannot discover from the entire record before us that the action of the court in permitting it was so prejudicial as to call for an interference. Counsel in the examination of their own witnesses should not assume the existence of a fact and then ask the witness whether it is or is not true. This is in its nature leading the witness, and such practice ought not to be indulged in.
IY. The plaintiff complains of the action of the court in refusing the following instruction: “If the jury believe from the evidence that Walser was in the peaceable possession of the land in 1880, by J. I). Coiner, his tenant, under a lease from March 1, 1880, to March 1, 1881; that Walser made a lease to one J. R. Howe, from March 1, 1881, to March 1, 1882, and that Howe occupied the land ; that Walser made a lease to Green from March 1, 1882, to March 1, 1888, and that Green occupied the land until January, 1883, when he left, and that defendant Graham went into possession
Whether J. S. Coiner was a mere intruder, or-entered into possession ot' the premisses with the assent-of both J. D. Coiner and Morgan, -would be of no consequence. It must follow that the renting of the premises by Howe and Creen, of Morgan, without the knowledge of plaintiff, did not have the effect to disturb-the.continuity of the plaintiff’s possession, from the-time he rented to J. D. Coiner until the defendant’sentry into possession. Farren v. Heinrich, 86 Mo. 521; McCartney v. Auer, 50 Mo. 397.
V. The eighth instruction given by the court, thus: “ If plaintiff rented the land to J. D. Coiner from March 1, 1880, to March 1, 1881, and that the latter left in September, 1880. and that J. S. Coiner took possession of the same adversely to plaintiff, and that the said J. S. Coiner left the place in the spring of 1881, and that Howe and Green thereafter became the occupying tenants of Morgan, the finding should be for defendant,” we think should not have been given. As has already been stated, in no view of the evidence could the occupancy of J. S. Coiner be held to be adverse to the plaintiff. There was no evidence to justify the submission of this theory of the case to the jury. J. S. Coiner’s occupation of the premises did not have the effect to dispossess the plaintiff.
For these reasons the judgment must be reversed, and the cause remanded.