38 Mo. App. 681 | Mo. Ct. App. | 1890
This is an action for unlawful detainer brought by plaintiff Witte against defendant Quinn, to recover a store room on Walnut street, Kansas City, and for damages for detention. On a trial had in the circuit court plaintiff recovered, and defendant has brought the case here by writ of error. In April, 18S6, a Mrs. Staats made a written lease for three years to defendant Quinn, of the premises in dispute; and subsequently in January, 1887, Mrs. Staats assigned the lease to plaintiff Witte, who collected the monthly rental from said Quinn until January 1, 1888, when said tenant refused to pay the rent of January for the alleged cause that said landlord had entered upon the premises rented and constructed buildings on the rear and side of the house rented to defendant, obstructing thereby the outside windows and destroying a woodshed and privy in the back yard of the leased premises.
The premises leased seemed to have been the first floor, or store room of a two-story brick house known as 1211 Walnut street, — wherein defendant carried on a boot and shoemaking business, his family residing in the back, and the business conducted in the front portion of the room leased. The lot was fifty feet front while the store only occupied 'twenty-five feet on the north side of the lot. Windows opened south on the vacant portion, while the rear of the lot not covered by the building, constituted a back yard wherein the landlord had constructed an outhouse or water-closet, with a plank walk leading thereto from the back door of the store. In addition to this, it seems, defendant had, during his occupancy, by consent of the landlord, erected in this back yard a wood-shed. Just prior to January, 1888, plaintiff had added to the improvements by erecting a building immediately south of and annexed to the leased store as well as by erecting a building in the
I. Objection is made as to the sufficiency of the plaintiff’s complaint, reliance being had, it seems, to the claim that the affidavit is faulty. We see no reason for this contention. The complaint, in substance and form, is all the law requires. The courts do not require any great strictness in these papers filed in suits before justices of the peace.
If such complaints are substantially as the statute requires it is all the courts will demand. Ish v. Chilton, 26 Mo. 256; Cabanne v. Spaulding, 14 Mo. App. 312.
II. The next matter complained of is that the damages awarded are excessive and exceed the amount claimed in the petition. We cannot take notice of this error assigned, for the reason that such matter was not legally called to the attention of the circuit court where the alleged error was committed. This objection to the verdict was not mentioned in the motion for new trial, nor in arrest of judgment, which was filed in the circuit court during the four days following the trial. Snch a complaint was; however, made in what defendant calls an '■'•amended motion in arrest,” filed twelve days after the trial. This “ amended motion,” filed as it was beyond the time demanded in the statute (Eevised Statutes, 1879, section 3707). will be disregarded. State v. Brooks, 92 Mo. 591, and cases there cited.
III. Defendant’s counsel further contends that the demand for possession which it is claimed w,as a prerequisite to maintain this action for unlawful detainer was not proved in the manner and form required by statute. The evidence shows, indisputably, that defendant was served with a written notice to
The determination of the point here made does not require the manner of this proof of demand to be passed on, since we hold that in this case no demand of possession was needed. Revised Statutes, 1879, sections 2419 and 2420, set out three- different states of facts, or condition of things, constituting “forcible entry and ‘ ‘detainer, ’ ’ and ‘ ‘unlawful detainer. ’' Section 2419 provides for cases where the party charged enters by force or strong hand, or with weapons, etc., and turns the occupant out of the premises. Such constitutes a case of ‘ ‘ forcible en try and detainer.5 ’ By section 2420, a party may be guilty of “unlawful detainer” in one of two ways, to-wit: First. By wilfully, and without force, holding over any lands, tenements or other possessions after the termination of the time for which they were let to him or to the person under whom he claims; or, second, where a party wrongfully and without force, by disseizin, shall obtain and continue in possession of the lands, tenements, etc., and refuse to surrender the same after demand made in writing therefor.
The written demand for possession is only required in the state of case last named and is not required in either of the other two cases. The case last named is one where the tenant has acquired the possession “wrongfully and without force, by disseizin,” and continues to hold the same after written demand for restoration. Young v. Smith, 28 Mo. 68; Andrae v. Heinritz, 19 Mo. 311. The case we have here to deal with does not belong to this last-named class. There is no charge made, nor any pretense, that the defendant
IY. The next point we are called upon to decide is one more difficult of satisfactory solution, as well as more nearly related to the merits of the controversy between these litigants.
At the trial the defendant offered to prove the following, which we quote from the abstract of the record: “That at the time defendant rented these premises there was a two-story brick building upon this lot; the lot was twenty-five by one hundred and fifteen feet. There were four windows on the south side and two windows in the rear and a door to the rear; that the yard in the rear of the premises was vacant, except that it had an outhouse which the agent of the landlord gave to the defendant for the use of himself and his family; that he also gave him permission to erect a coal-shed on the vacant lot, which he did; there was also a board walk running from the back end of the store to the outhouse and coal-shed; that he occupied the rear end of the store for the use of himself and family as a dwelling-house; that subsequently, during the month of December, 1886, the plaintiff built a two-story building in the rear, and also, by closing the windows in the rear, he deprived the tenant of the use of the outhouse, the back yard and coal-shed; that, in the same
The theory, upon which this evidence was offered, was, doubtless, that such conduct on the part of plaintiff constituted an eviction as to a portion, at least, of the premises covered by the lease; and that the plaintiff having deprived defendant of the use of a part of the leasehold was thereby barred of the right to maintain this action.
The rule seems well settled, that if the landlord wrongfully enters into any part of the demised premises, which are let for an entire gross sum, and shall expel the lessee therefrom, then there is a total suspension of the whole rent until the tenant is restored to the whole possession. This, too, is the rule notwithstanding the tenant may continue the occupancy of a portion of the leased property. Taylor’s Landlord & Tenant [7 Ed.] sec. 378; Wood’s Landlord & Tenant, sec. 473, and numerous cases cited in notes.
This eviction may be an actual expulsión of the tenant from the leased premises, or a portion thereof; or there may be such acts done by the landlord that the tenant cannot have the beneficial enjoyment of the premises rented; and if thereby he shall be forced to abandon, and does abandon, the premises or a portion thereof by reason of such unwarranted conduct by the landlord, the defense to a claim for rent is as complete as* if there had been an actual ouster. Taylor’s Landlord and Tenant, sec. 381, and cases cited in notes; Wood’s Landlord and. Tenant, sec. 481, et seq. And not only is the rent suspended, but as well the right to oust the tenant by action for non-payment of the rent. Ib.
So now if the evidence, offered by the defendant at the trial of this cause, tended. to prove facts which would constitute an eviction, actual or constructive, of the premises rented, then it should have been admitted, and the rejection thereof was error. It is clear that if defendant’s rights as a tenant extended beyond the store room and included the use of or any easement in the small open yard, outhouse and wood-shed to the rear of the building, then plaintiff! had no legal right to take away, destroy or occupy the same, and exclude defendant from the enjoyment thereof, during the term of his, defendant’s, lease. Th§ written lease under which defendant claimed “rented to J. S Quinn, in the present condition thereof the store room in building known as 1M1 Walnut street, Kansas City, for the period of three years from May 1, 1886.” The question now arises, did defendant by this lease acquire any
It is announced ás a general rule that ‘ ‘ the grant of a thing passes the incident, as well as the principal, though the latter only is mentioned; and this effect cannot be avoided without an express reservation. Thus the lease of a building passes everything belonging to it, or which is essential to its enjoyment” (Taylor’s Landlord and Tenant, section 161), or, as expressed by another able law-writer: “A grant of a thing will include whatever the grantor has power to convey, which is reasonably necessary to the enjoyment of the thing granted.” 3 Kent’s Com., side page 627. And, again, “where an easement has become appurtenant to the dominant estate, a conveyance of that estate carries with it the easements belonging to it, whether mentioned in deed or not.” 2 Kent’s Com., side p. 28. The word “appurtenances” is not needed to carry these incidents of the principal thing, but it is held that its presence or absence will not materially affect the grant, and that, as well without it as with it, everything that appertains or belongs to the principal will pass. Wood’s Landlord and Tenant, sec. 213; Riddle v. Littlefield, 53 N. H. 503. Thus the lease of a mansion house was held not only to include the dwelling-house, proper, but also all the outhouses, barns, cow-house, etc., if they be a parcel of the mansion, although they be not under the same roof. An appurtenant is defined as “a thing used with and related to, or dependent upon, another thing more worthy, and ágreeing in its nature and quality with the thing whereunto it is appendant or appurtenant.” 3 Kent, 626. So we conclude 1 that this defendant under his lease acquired the appurtenances, existing at the date of his lease, which were necessary to the proper enjoyment of the store
If then, when defendant hired the store-room, 1211 Walnut street, Kansas City, there was in the rear thereof a small space left open as a back yard and on which was constructed an outhouse, with walk leading thereto from the back door of said store, all intended for, and used by, the tenants in said building and said store, and which were necessary to a complete enjoyment thereof, then the effect of said lease was to grant such uses to defendant, and he was entitled to the enjoyment thereof without interruption from the landlord. And if the plaintiff entered upon such premises in the rear of the store and built thereon another structure, so as to deprive defendant of the use of such appurtenances, then there was an actual eviction as to a portion of the premises leased, and plaintiff ought not to be allowed to maintain this suit. See cases in point. Doyle v. Lord, 64 N. Y. 432; Riddle v. Littleton, 53 N. H. 503; Oliver v. Dickinson, 100 Mass. 114.
We think then that the trial court erred in excluding evidence tending to establish the above facts, and for that reason the judgment must be reversed and the cause remanded for a new trial.
Y. Since the cause must be sent back for a new trial, we will further give it as our opinion that there is nothing of constructive eviction shown by the proffered evidence of defendant. It would seem that this defense
The judgment of the circuit court is reversed, and the cause remanded for a new trial, in accordance with this opinion.