Blount v. Connolly

• Decision Date: 21 February 1905
• Citation: 110 Mo. App. 603,85 S.W. 605
• Court: Missouri Court of Appeals
• Parties: BLOUNT v. CONNOLLY et al.<SMALL><SUP>*</SUP></SMALL>

85 S.W. 605

110 Mo. App. 603

BLOUNT v. CONNOLLY et al.^*

St. Louis Court of Appeals. Missouri.

February 21, 1905.

COVENANTS — RENEWAL OF LEASE — ENFORCEMENT BY ASSIGNEES — SPECIFIC PERFORMANCE.

1. Where the habendum clause of a lease ran to the lessees and their assigns, and the lessees covenanted for themselves, their heirs and assigns, to pay rent, a covenant by the lessor to grant a renewal runs with the land, and is binding on the owner of the fee and enforceable by an assignee of the term, in the absence of anything in the lease restricting the right to a renewal to the original lessees.

2. Where the owner of the fee brought unlawful detainer after the expiration of a term which carried with it an option of renewal, the tenant could sue to enjoin the unlawful detainer suit and to procure a specific performance of the covenant of renewal, as his equitable right to the extended term could not be set up in defense to the unlawful detainer suit.

Appeal from Circuit Court, Washington County; Frank A. Dearing, Judge.

Action by Thompson F. Blount against Frank X. Connolly and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. F. Green and M. F. Rhodes, for appellants. E. M. Dearing and Byrnes & Bean, for respondent.

Opinion.

GOODE, J.

The petition in this case is in the nature of a bill in equity to compel the defendants to specifically perform a covenant of renewal contained in a lease, and to enjoin them from prosecuting an unlawful detainer suit before a justice of the peace for the possession of the premises. Said premises consist of a lot in the town of Potosi, Washington county, on which stand a storehouse and other structures occupied by plaintiff in his business of merchandising. The lease was executed December 31, 1898, and created a term to run five years from January 1, 1899, at a rent of $30 a month. The lessor was Joseph Connolly, and the lessees William Bennett and Alexander Harrison, then merchants under the firm name of Bennett & Harrison. The contract of lease was in writing, and contained a clause that, if the rent reserved was not paid when due, the lease should be void, and the lessor might, without notice or demand, enter and take possession of the premises. The clause in regard to renewal is as follows: "And the said Joseph Connolly hereby agrees to give the said Bennett & Harrison the option to renew this lease or to purchase the leased property upon such terms as may be agreed upon by both parties at the expiration of this lease." The lessor, Joseph Connolly, died in 1903, having devised the leased premises to the defendant Frank X. Connolly, and appointed the other defendant, Joseph C. Connolly, executor of his will. In April, 1903, the lease passed by assignment of the original lessees to the plaintiff, Blount, from whom rent was accepted by F. X. Connolly, devisee of the lessor, until January 1, 1904. The rent was tendered for that month, but refused, and, demand for possession having been made, the defendants in this suit instituted an unlawful detainer action before a justice of the peace to recover the premises. The plaintiff then began this suit, the purpose of which, as said above, is to compel a renewal of the lease and to restrain the prosecution of the suit before the justice. It should be stated that Blount, as assignee of the term, had notified F. X. Connolly, the owner of the fee, on December 1, 1903, that he demanded a renewal of the lease according to its terms. No question is made about the sufficiency of this notice, and the only point for decision is as to the right of the plaintiff, as assignee, to enforce a renewal of the lease.

The contention of the defendants is that the option to renew was personal to the original lessees, Bennett & Harrison, and did not pass to the benefit of their assignees. The habendum clause of the lease ran to Bennett & Harrison "and their assigns,"...