Bussen v. Del Commune

• Decision Date: 21 January 1947
• Docket Number: No. 27165.,27165.
• Citation: 199 S.W.2d 13
• Parties: CHARLES BUSSEN, (PLAINTIFF) APPELLANT, v. LOUISE H. DEL COMMUNE, (DEFENDANT) APPELLANT, HENRY J. DRURY, SHERIFF OF STE. GENEVIEVE COUNTY, MISSOURI, DEFENDANT.
• Court: Missouri Court of Appeals

199 S.W.2d 13

CHARLES BUSSEN, (PLAINTIFF) APPELLANT, v. LOUISE H. DEL COMMUNE, (DEFENDANT) APPELLANT, HENRY J. DRURY, SHERIFF OF STE. GENEVIEVE COUNTY, MISSOURI, DEFENDANT.

No. 27165.

St. Louis Court of Appeals, Missouri.

Opinion filed January 21, 1947.

Motion of plaintiff-appellant for a rehearing or to transfer cause to Supreme Court overruled February 21, 1947.

Application of plaintiff-appellant to Supreme Court for transfer of cause to that court denied April 21, 1947.

Appeal from the Circuit Court of Ste. Genevieve County. — Hon. Norwin D. Houser, Judge.

REVERSED AND REMANDED (with directions.)

Emmett Golden and Arthur G. Heyne for Louise H. Del Commune, defendant-appellant.

(1) Section 1887, R.S. Mo., 1939, provides that when one of the original parties to the contract or cause of action in issue and on trial is dead, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claimed under him. Stone v. Wendling, (Mo. Sup.) 270 S.W. 315; Gibbs v. Haughawout, 270 Mo. Sup. 384; Butts v. Phelps, 79 Mo. 302; Stanton v. Ryan, 41 Mo. 514. (2) An attorney, under Section, R.S. Mo., 1939, is absolutely disqualified to testify to any communications made to him by his client in that relation. Hoffman v. Hogan, 137 S.W. (2d) 441, 345 Mo. 903; Weinshenk v. Sullivan, (Mo. App.) 100 S.W. (2d) 66; Exparte Schneider, (Mo. App.) 294 S.W. 736. (3) Where a tenant holds over by consent either express or implied after termination of a lease for years, will be considered as evidence of a new contract of tenancy and the tenant will be presumed to hold over subject to the terms of the original lease. Finney v. City of St. Louis, 39 Mo. 177; Quinette v. Carpenter, 35 Mo. 502; Peoples Bank v. Bennet, 159 Mo. 1. (4) Assuming that Mrs. Burgert's testimony that Mr. Del Commune agreed to stay on as a month to month tenant is the truth, such promise would be without consideration for the reason that the Burgerts were legally obligated to give the Del Communes a lease for a period of more than 25 years. Tegethoff v. Sidman, 158 S.W. (2d) 224; Estate, 232 S.W. 671, 288 Mo. 588; Wendover v. Boker, 121 Mo. 273; Tucker v. Bartle, 85 Mo. 114. (5) (a) Equity regards that as done which ought to be done, and when the Burgerts refused to execute a new lease, which they were legally obligated to do under the terms of the old lease, equity considers that this new lease had been executed. 30 C.J.S., page 507; Dinkelman v. Havekamp, 80 S.W. (2d) 681; Johnston v. Brill, 295 S.W. 558; Bank v. Mullspugh, 281 S.W. 733; Quaintance v. Moberly, 110 S.W. (2d) 857; City Garage and Sales Company, v. Ballenger, 108 So. 257. (b) Equity imputes intent to fulfill an obligation. 30 C.J.S., p. 516; Bates v. Dana (Mo.), 133 S.W. 326. (6) The Court was correct in sustaining the motion to dissolve the temporary injunction for the reason that this suit was an attempt to collaterally attack a valid judgment of a Court of competent jurisdiction, which had been affirmed by the St. Louis Court of Appeals. Muller v. Grunker, 123 S.W. 469; Overton v. Overton, (Mo.) 375 S.W. (2d) 565; State ex rel. Kinealy v. Hostetter, 104 S.W. (2d) 303; Lamb v. Drew, 20 Iowa 15.

Fred J. Hoffmeister and Harry Gershenson for plaintiff-appellant.

(1) The Court did not violate Sec. 1887, R.S. Mo. 1939, by permitting Mrs. Burgert to testify, since she was not a party to the transaction on trial; nor was there a proper and timely objection made to her testimony. Furthermore, she was fully cross-examined by counsel for appellant, thereby waiving any alleged incompetency. (2) The relationship of attorney and client was not established; therefore the testimony of witness Boverie was not in violation of Sec. 1895, R.S. Mo. 1939. (3) There was no holding over under the lease of 1909, either express or implied. On the contrary, a new agreement was executed between the parties after the termination of said lease in 1934. 35 C.J. 1031; Leggett v. Louisiana Purchase Exposition Co., 134 Mo. App. 175, 114 S.W. 92, 93; Stout v. North, 211 Mo. App. 245, 250. (4) The Court erred in refusing to grant plaintiff-appellant complete relief and in refusing to grant the injunction prayed for. Steele v. Allison, 73 S.W. (2d) 842; Rains v. Moulder, 90 S.W. (2d) 81, 84; Sec. 1683, R.S. Mo. 1939.

BENNICK, C.

This is a suit in equity which was brought for the alleged purpose of quieting title to a described tract of land in Ste. Genevieve County, and for the further purpose of determining the right to possession, and of restraining defendants from interfering with plaintiff's possession and enjoyment of the land by the execution of a judgment which had been previously rendered against plaintiff in an unlawful detainer suit.

The greater portion of the land in question is operated as a rock quarry. The plaintiff as Charles Bussen, who is the present owner of the land, and operates the quarry upon it. The principal defendant is Louise H. Del Commune, who claims a leasehold interest in and to a portion of the land. The other defendant is Henry J. Drury, the Sheriff of Ste. Genevieve County, whom plaintiff seeks to have enjoined from acting in his official capacity to execute the judgment rendered in the unlawful detainer suit.

The issues in the case can best be determined by a statement of the facts leading up to the present controversy.

Defendant Louise H. Del Commune is the widow of Charles L. Del Commune, who died on March 28, 1936.

The land in question was originally owned by Frank Burgert and Elizabeth Burgert, his wife.

On October 23, 1909, the Burgerts, as parties of the first part, leased the premises by a written lease to one Baumstark, as party of the second part, for a term of twenty-five years, expiring October 22, 1934. By the terms of the lease Baumstark was given the sole and exclusive right of operating a quarry upon the land, and as consideration for the lease was obligated to pay the Burgerts certain monthly royalties upon the stone removed from the premises, or in any event a minimum annual rental of $25.

The present controversy involves, among other things, the interpretation to be given the following clause of the lease:

"The said parties of the first part agree for themselves, their heirs or assigns, to lease these premises to the said party of the second part, his heirs or assigns, at the expiration of this lease for a like number of years at the same rates and provisions as in this lease expressed."

The dispute is over the question of whether such clause should be construed as a covenant to renew, or, in effect, as a covenant to extend. Bussen argues that the clause was not intended as a present demise so as itself to extend the tenancy for the additional period upon the expiration of the original term, but that instead it contemplated the execution of a new lease, without which the tenant was not entitled to retain possession. Mrs. Del Commune insists, on the other hand, that even though the clause contemplated the execution of a new lease, the lessor was given no option in the matter, so that if the tenant claimed the privilege of holding over, the tenancy would be continued for the additional term, whether the lessor fulfilled his obligation or not.

Baumstark died shortly before the expiration of the original term of the lease; and on June 23, 1934, his executors, after a private sale of the leasehold interest, conveyed all of his right, title, and interest to Mr. and Mrs. Del Commune as tenants by the entirety, who thereupon entered into possession of the premises, and thenceforth paid the Burgerts the royalties and rentals provided for by the lease.

It was a conceded fact that upon the termination of the lease on October 22, 1934, there was no execution of a new lease between the Burgerts and the Del Communes, nor a formal extension of the existing lease. On the contrary, Bussen's evidence was to the effect that Del Commune, upon the expiration of the lease, tendered a new instrument on the same terms, which the Burgerts refused to sign unless provision was made for the payment of larger royalties. The evidence was to the further effect that an oral agreement was thereupon made that the Del Communes should remain in possession of the premises as month to month tenants until such time as business conditions might justify the execution of a lease for larger royalties, and that the Del Communes' possession of the property was thenceforth continued upon a purely monthly basis.

Mrs. Del Commune not only objected to the admission of such evidence for reasons which will be considered in the course of the opinion, but also took the position that when she and her husband held over after the expiration of the original term with the Burgerts' consent, the law implied a continuation of the tenancy upon the same terms and conditions as contained in the original lease, and that in any event there was no consideration for an agreement as to a month to month tenancy because, in her view of the case, the Burgerts had been legally obligated to extend the lease for an additional term of twenty-five years.

Upon Del Commune's death in 1936, the entire leasehold interest vested in Mrs. Del Commune by right of survivorship; and on May 22, 1937, she sublet the premises to Bussen by a written lease for a term of five years expiring May 21, 1942, and subject to the right of renewal for a like term upon the giving of notice ninety days before the expiration of the original term. The lease provided for Bussen's payment to Mrs. Del Commune of certain royalties upon the stone removed from the quarry, or in any event a minimum annual rental of $85.

During the term of such lease, Bussen acquired the property from the Burgerts by warranty deeds executed, respectively, on September 5, 1940, and March 28, 1942. Following Bussen's purchase of the property, Mrs. Del Commune began paying him the royalties which she...