Casey v. Steinmeyer

• Decision Date: 04 November 1879
• Parties: JOHN CASEY, Appellant, v. JOHN G. STEINMEYER, Respondent.
• Court: Missouri Court of Appeals

7 Mo.App. 556

JOHN CASEY, Appellant,

v.JOHN G. STEINMEYER, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 4, 1879.

Open and notorious possession under an unrecorded lease, without some evidence tending to show actual knowledge of the existence of the lease, will not authorize an inference that the plaintiff had notice of the defendant's possession under the lease.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

PHILIP DONAHUE, for appellant, cited: Barton v. Butler, 21 Mo. 313; Vaughn v. Tracy, 25 Mo. 318; Maupin v. Emmons, 47 Mo. 304.

HITCHCOCK, LUBKE & PLAYER, for respondent, cited: Livermore v. Blood, 40 Mo. 48; Lyman v. Russell, 45 Ill. 281; Vaughn v. Tracy, 22 Mo. 415; Shumate v. Reavis, 49 Mo. 336; Fellows v. Wise, 55 Mo. 413.

BAKEWELL, J., delivered the opinion of the court.

This action is ejectment for part of lots 1 and 2 in city block 948, St. Louis. The property is the rear half of a piece of land of 50 by 150 feet on the corner of Eighteenth and Carr Streets, fronting on Carr and running north to an alley.

It appears that one Dunn, in 1868, leased the lot in dispute to defendant for a term of three years and a half, with the privilege of renewal for two periods of five years each, the last of which expires on July 1, 1881. The lease was not recorded. Afterwards, in May, 1874, Dunn conveyed the two lots, including the property possession of which is sought in this action, to one O'Reilly as trustee, to secure a note for $6,500. The loan was effected through O'Reilly, who is an examiner of titles and agent for procuring and making loans. The money belonged to plaintiff, Casey, who resides in Washington, and had placed the money with an agent named Clancy to invest. O'Reilly examined the title, but had nothing to do with examining the value of the property. He did not look at the property; he says he had a general knowledge of it. Casey was not in the city at the date of the loan, and never saw the property until after the loan was effected. The note not being paid, the deed of trust was foreclosed, and Casey, the cestui que trust, became the purchaser at the trustee's sale. After the sale, defendant offered to pay to plaintiff the rent and taxes accruing under the lease, but plaintiff refused to receive them. On receiving his lease, defendant had gone into possession, marked off his portion of the lots by running a fence through, so as to leave a passage-way three feet wide between Dunn's premises, on Carr Street, and defendant's possession fronting on the alley. Defendant subsequently erected three small brick dwellings on the Eighteenth-Street side of his lot, and also put up, on the alley in the rear, a small building used as a stable, and a small carpenter's shed, on which he placed his sign, “John J. Steinmeyer, carpenter and builder.” Defendant, by himself and his tenants, had open, notorious, and uninterrupted possession of the premises from the date of his lease to the date of this suit. On the Carr Street front was a double two-story brick dwelling, occupied by Dunn as his family residence.

It is not necessary to set out all the instructions. Those bearing on the question of notice are as follows:--

“1. The jury are instructed that possession of the premises in question by the defendant, under the unrecorded lease offered in evidence by him, would not be actual notice to the plaintiff of the defendant's title under said lease; and the jury are instructed that they must find for plaintiff unless they believe from the evidence that plaintiff or his agent had information or knowledge that the defendant was in possession of said premises, claiming title, at the time of the execution of said deed of trust offered in evidence by plaintiff, and that this information or knowledge was of such a character as to put a man of ordinary care and prudence upon inquiry as to what claim the defendant had to the property.

2. Unless the plaintiff or his agent had the information or knowledge brought home to him that defendant was in possession of the premises in dispute, claiming title, the plaintiff should recover.”

These were given at the instance of plaintiff. For the defendant, the court instructed...