City of Carondelet v. Lannan

• Decision Date: 31 March 1858
• Citation: 26 Mo. 461
• Parties: CITY OF CARONDELET, Plaintiff in Error, v. LANNAN et al., Defendants in Error.
• Court: Missouri Supreme Court

26 Mo. 461

CITY OF CARONDELET, Plaintiff in Error,

v.LANNAN et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1858.

1. Under the act of December 22, 1824, (R. C. 1825, p. 211,) as well as under the act of February 6, 1839, (Sess. Acts, 1839, p. 210,) the trustees of the town of Carondelet had power to make leases of the common of the town; they might under said act, in accordance with a town ordinance to that effect, make leases containing a clause of forfeiture for nonpayment of rent reserved; such forfeiture, when declared in proper form, could not be relieved against, although no demand of rent had been previously made. (Taylor v. Carondelet, 22 Mo. 105, affirmed.)

Error to St. Louis Land Court.

This was an action in the nature of an action of ejectment to recover possession of a lot in Carondelet common, that had been leased by the town of Carondelet in the year 1838. It is claimed by Carondelet that there was a forfeiture of the lease. The defendants set up in their answer that the lot in controversy had been leased by the town of Carondelet in the year 1838 to one Joseph Vient (under whom defendants claim) for the term of ninety-nine years; that the rent was duly paid until March 14, 1851, when, by accident, the tenant omitted to pay the rent due on that day, no demand having been made for the same; that on July 10, 1852, the lessor declared the lease forfeited for nonpayment of said rent, but never reëntered nor took possession of the premises, nor demanded possession thereof until the commencement of this suit; that afterwards, to-wit, some time in the year 1852, so soon as the tenant was advised that the rent was in arrear and unpaid, a tender was made to the lessor of the whole amount of the rent in arrear and unpaid; that said lessor refused to receive the same. Defendants prayed that plaintiffs might be decreed to receive said tender in full satisfaction and discharge of said arrearages; that defendants might be decreed to be entitled to the possession of the premises sued for as against plaintiff; and that they might be relieved against said forfeiture.

The plaintiff replied to this answer. To this replication there was a demurrer. The court sustained the demurrer and set aside the forfeiture. The circumstances under which this forfeiture was declared are sufficiently set forth in the opinion of the court.

Casselberry, for plaintiff in error.

I. The case is substantially the same as the cases of Woodson v. Skinner, 22 Mo. 13; and Taylor v. Carondelet, 22 Mo. 105. The board of trustees had as full power before as after the act of 1839 to pass ordinances authorizing the leasing of their commons and of adding penalties and forfeitures.

N. Holmes, for defendant in error.

I. This case does not come within the principle of Taylor v. Carondelet, 22 Mo. 105. That case turned on the special provisions of the act of February 6, 1839, and the force of an ordinance passed in pursuance thereof in 1845, under which the lease in that case was made. This lease was made before that act was passed, by virtue of the general powers of the corporation, as an incorporated town, incorporated by an order of the county court, in 1832, under the act of 1825 (R. C. 1825, p. 764). The acts of 1825 and 1835 did not constitute the board of trustees a miniature general assembly and give them special “legislative powers on the subject of leases” as the act of 1839 did, as held by this court in Taylor v. Carondelet. The ordinance of March 3, 1838, authorizing the board of trustees to lease the commons in the name of the corporation, merely directed them so to make the leases that they could “annul” them and “reënter'DD' for nonpayment in six months; and accordingly a stipulation to that effect was inserted in the lease as a part of the contract. It is, in effect, no more than the ordinary clause of forfeiture in a lease between private individuals. In such cases as this the courts grant relief. (2 Sto. Eq. § 1315, 1316, 1323 and note 3; 1 Spence Eq. Jur. 630; 2 White & Tud. L. C. 460; Bowser v. Colby, 1 Hare, 128; 1 Eden on Injunctions, 44; 2 Platt on Leases, 475-482; Taylor, Landlord and Tenant, § 495.)

RICHARDSON, Judge, delivered the opinion of the court.

We do not see how this case can be distinguished on principle from Taylor v. Carondelet, 22 Mo. 105. In 1839 the general assembly authorized the trustees of the town of Carondelet to grant leases of the common belonging to the town, and invested them will all the power necessary to carry into effect the objects of the act. (Sess. Acts, 1839, p. 210, § 2, 6.) On the 12th day of July, 1845, the trustees passed an ordinance directing that the lots in...