Benoist v. Rothschild

• Decision Date: 06 July 1898
• Parties: Benoist et al. v. Rothschild et al; Thomas, Appellant
• Court: Missouri Supreme Court

46 S.W. 1081

145 Mo. 399

Benoist et al. v. Rothschild et al; Thomas, Appellant

Supreme Court of Missouri, First Division

July 6, 1898

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Affirmed.

Laughlin & Tansey and Edward S. Robert for appellant.

(1) Attornment can only be by word of mouth, or some act. 2 Coke upon Littleton [1 Am. Ed.], L. 3, ch. 10, sec. 551. (2) The relation of landlord and tenant does not arise between a purchaser and the occupants until the latter voluntarily attorns, or the purchaser exhibits his deed and demands an attornment. Gray v. Rogers, 30 Mo. 258; Lindenbower v. Bentley, 86 Mo. 515; Green v Sternberg, 15 Mo.App. 32; May v. Luckett, 48 Mo. 472; May v. Luckett, 54 Mo. 437; Green v Sinclair, 52 Mo. 327; Kingman v. Abington, 56 Mo. 46; Clampitt v. Kelly, 62 Mo. 571; Sturges v. Botts, 24 Mo.App. 282; Culverhouse v. Worts, 32 Mo.App. 419; Holden v. Wann, 43 Mo.App. 640. (3) The relation of landlord and tenant is confidential, and an attornment to any one without the landlord's consent is void, except in the cases mentioned in the statute, or where the landlord has parted with his title and the attornment is made to the person who has acquired such title. R. S. 1889, secs. 6373 and 8843; Dausch v. Crane, 109 Mo. 323; Farrar v. Heinrich, 86 Mo. 532; Clampitt v. Kelly, 62 Mo. 571; Bank v. Calvin, 60 Mo. 559; Stagg v. Eureka, 56 Mo. 317; Leach v. Koenig, 55 Mo. 451; McCartney v. Auer, 50 Mo. 395; Rutherford v. Ullman, 42 Mo. 216; Schultz v. Arnot, 33 Mo. 172. (4) Where the owner is in possession and a stranger acquires the title, the relation of landlord and tenant does not arise unless the former owner attorns. Kingman v. Abington, 56 Mo. 46; Cohen v. Kyler, 27 Mo. 122; Sturges v. Botts, 24 Mo.App. 282. (5) Where a provision in a deed to land requires the grantee to pay money to a third person, as a part of the consideration, the sum becomes a charge upon the land and the land becomes the primary fund for the payment of the charge. Pomeroy's Eq. Jur. [2 Ed.], secs. 1205, 1206 and 1207; Jones on Real Prop. Conv., sec 644; Dunlop v. Mobley, 71 Ala. 102; Townsend v. Ward, 27 Conn. 610; Comstock v. Hitt, 37 Ill. 542; Bugler v. Sargent, 23 Me. 267; Johnson v. Zink, 51 N.Y. 333; Freeman v. Auld, 44 N.Y. 50; Sanders' Estate, 7 Penn. Co. Ct. 482; Weir v. Simon, 55 Wis. 637; Weber v. Zeimet, 30 Wis. 283; Powers v. Powers, 28 Wis. 659; (6) Where the covenant is contained in the deed subsequent purchasers are charged with notice. Pomeroy Eq. Jur. [2 Ed.], sec. 1206; Weber v. Zeimet, 30 Wis. 283; Jumel v. Jumel, 7 Paige, 591; Freeman v. Auld, 44 N.Y. 50; Risk v. Hoffman, 69 Ind. 137; Young v. Trustee, 31 N.J.Eq. 290.

Nathan Frank, Chas. W. Bates and Benjamin H. Charles for respondent, Rothschild.

(1) A judgment lien expires in three years, and a sale of real estate upon an execution issued after three years from the rendition of the judgment conveys no title as against the vendee of the judgment debtor who purchased prior to the issuance of the execution. Christy v. McKee, 94 Mo. 241; Christy v. Flanagan, 87 Mo. 670. (2) Rothschild and his grantors were always in possession from the time of the Ryan deed to Gibbons in 1876 to the present time, and Mrs. Thomas was never in possession. (a) The legal seizin and possession follow the legal title (in the absence of actual adverse possession). Bradley v. West, 60 Mo. 33. (b) To divest of possession one in possession there must be actual ouster. Mylar v. Hughes, 60 Mo. 105. (c) The attornment of a tenant to the grantee of his landlord is valid and will be presumed. 2 R. S. 1889, sec. 6373; Holden B. & L. Ass'n v. Wann, 43 Mo.App. 640; Cook v. Farrah, 105 Mo. 492; Lindenbower v. Bentley, 86 Mo. 515. (d) A tenant is bound to deliver possession to his landlord or his landlord's grantee, and can not hold adversely to either of them, nor can he by agreement with a third person hold for such third person. Cook v. Farrah, 105 Mo. 492; Farrar v. Heinrich, 86 Mo. 521. (e) The attornment of the tenant to a stranger is void, and does not transfer possession. The owner is not ousted of, the stranger not invested with, possession. 2 R. S. 1889, sec. 6373; Cook v. Farrah, 105 Mo. 492; Farrar v. Heinrich, 86 Mo. 521. (f) Attornment of the tenant to a stranger without the consent of his landlord does not affect the landlord's possession. Farrar v. Heinrich, 86 Mo. 521. (g) The vendor can not claim adverse possession against his vendee without actual ouster. Pentz v. Keuster, 41 Mo. 447. (h) To convert a friendly possession, as in case of tenants in common, landlord and tenant and grantor and grantee, into an adverse possession, the intention to make the change must be distinctly made known to the true owner. Meier v. Meier, 105 Mo. 411; Budd v. Collins, 69 Mo. 129; Campbell v. Laclede Gas Light Co., 84 Mo. 352; Gordon v. Eans, 97 Mo. 587; Wommack v. Whitmore, 58 Mo. 448; Hamilton v. Boggess, 63 Mo. 233; Warfield v. Lindell, 38 Mo. 581; Lapeyre v. Paul, 47 Mo. 586; Freeman, Coten. and Part., sec. 241. (i) There could not be adverse possession against Rothschild (or his grantors), because the Christys, his cotenants, were always in the actual possession recognizing Rothschild's title and possession, and no one ever claimed adversely to the Christys. (3) (a) The failure to pay a part of the consideration for a conveyance of title does not affect the title, except that possibly the vendor retains a vendor's lien. But if a vendor's lien was retained it has never been enforced or attempted to be enforced, and cuts no figure in this case, not being pleaded by appellant. Furthermore, it is barred by the statute of limitations. Zoll v. Carnahan, 83 Mo. 35; 2 Jones on Liens, sec. 1099. (b) A subsequent purchaser is not chargeable with a vendor's lien unless the deed expressly reserves it, or he has actual notice thereof, and that it has not been paid. 2 Jones on Liens, sec. 1076; Adams v. Buchanan, 49 Mo. 64; Moeller v. Holthaus, 12 Mo.App. 526; Zoll v. Carnahan, 83 Mo. 35. (c) To make a grantee personally liable on or for a lien, the promise to pay must be express. However provable, it must be express. Hall v. Morgan, 79 Mo. 47; Walker v. Goodsill, 54 Mo.App. 631; Tanguay v. Felthouser, 45 Wis. 30; 1 Jones on Mortg., sec. 761; Burr v. Beers, 24 N.Y. 178; Pardee v. Treat, 82 N.Y. 385; Durnherr v. Rau, 135 N.Y. 219; Hare v. Murphy, 45 Neb. 809. (d) A promise to assume the payment of existing liens can never be converted into a charge upon land (which can be established only by some memorandum in writing signed by the party to be charged), because such a promise, being personal, is not within the statute of frauds, and may be proved by parol. Merriman v. Moore, 90 Pa. St. 78; 1 Jones on Mortg., sec. 750; Price v. Reed, 38 Mo.App. 489.

Brace, P. J. Robinson and Williams, JJ., concur; Marshall, J., not sitting.

OPINION

Brace, P. J.

This is a proceeding in partition in which the plaintiffs as heirs at law of James Christy claimed title to an undivided half of a lot of land in the county of St. Louis, and the defendants each claimed adversely to the other the other undivided half thereof.

The defendants made no claim to the share of the plaintiffs, and by consent that share was adjudged to the plaintiffs, leaving the issue between the defendants as to the other undivided half to be determined. Upon the trial of that issue before the court, a jury having been waived, the finding and judgment was for the defendant Rothschild, and the defendant Thomas appealed.

It appears from the evidence that in the year 1866 James Christy and Thomas Ryan became seized in fee simple as tenants in common of the premises; that on the twenty second of November, 1875, a judgment was rendered in the circuit court of St. Louis county, which became a lien on Ryan's interest in said land in favor of the administrator of said Christy and others, against said Ryan, for the sum of $ 11,626.83; that on the nineteenth of May, 1876, the said Ryan, by his deed of that date, in which his wife joined conveyed his undivided half of the premises, together with ten other parcels of land, to John F. Gibbons, the habendum clause of the deed being as follows: "To have and to hold the same, together with all rights, privileges, easements, appurtenances, and hereditaments to the same belonging unto the said party of the second part, his heirs and assigns forever; and the said Thomas Ryan, for himself, his heirs, executors and administrators, covenants to and with said Gibbons that he and they shall and will, with the exceptions hereinafter made and mentioned, warrant and defend the title to the premises conveyed unto him, the said John F. Gibbons, his heirs, executors, administrators and assigns against the lawful claims and demands of all and every person or persons whosoever, lawfully claiming the same, which exceptions are three in number and are: First, judgments against said Thomas Ryan in the courts of St. Louis county and in favor respectively of the legal representatives of James Christy and Samuel M. McCarty; second, certain mortgages and deeds of trust by said Ryan and wife, executed and already duly recorded, subsisting liens upon some or all of the property hereby conveyed, and of which said Gibbons is fully advised by the examination of the title he has made; third, taxes assessed last year, but payable during this year. The amount of all which liens, taxes and hypothecations have been computed between the parties hereto as part of the consideration of this deed, and the said Gibbons has purchased the property hereby conveyed for said sum of twenty-eight thousand dollars in addition to and exclusive of the sum necessary for the hypothecations." On the twenty-sixth of June, 1877, the said...