Cohen v. Kyler

• Decision Date: 31 March 1858
• Citation: 27 Mo. 122
• Parties: COHEN, Respondent, v. KYLER, Appellant. COHEN, Plaintiff in Error, v. KYLER, Defendant in Error.
• Court: Missouri Supreme Court

27 Mo. 122

COHEN, Respondent,

v.KYLER, Appellant.

COHEN, Plaintiff in Error,

v.KYLER, Defendant in Error.

Supreme Court of Missouri.

March Term, 1858.

1. An action for use and occupation cannot be maintained, unless the relation of landlord and tenant exists between the parties founded on an agreement express or implied.

2. A bathing tub and lead water pipes, fastened to the walls and floor of a building by nailing, are fixtures as between a vendor and vendee.

Appeal from, and Error to, St. Louis Land Court.

The facts sufficiently appear in the opinion of the court.

Krum & Harding, for Kyler, cited Woodf. Land. & Tenant, 432, 607; 3 Mo. 286; 1 Term, 378.

H. N. Hart, for Cohen.

RICHARDSON, Judge, delivered the opinion of the court.

The plaintiff brought an action against the defendant for the use and occupation of a dwelling house, and for damages, alleging that the defendant wrongfully took down and carried away fixtures that belonged to the plaintiff, to-wit: “Sundry lead pipes and plumbing work, bath tub, two sinks and waste pipe.” It appears from the bill of exceptions that the defendant, for the purpose of securing the payment of a debt, executed a deed of trust conveying a lot and dwelling house in the city of St. Louis, and authorized the trustee, in the event of a failure to pay the debt, to sell the property. Default having been made in the payment of the debt, the trustee, pursuant to the terms of the deed, advertised and sold the premises described in the deed on the 12th of November, 1856, and the plaintiff became the purchaser, and received a deed. The defendant was in the occupation of the house at the time of the sale, and remained in possession for more than two months against the plaintiff's consent. “It was admitted that the defendant never attorned to the plaintiff or agreed to pay rent to him for said premises. The plaintiff also proved that after the said sale of said premises to plaintiff, and while defendant occupied the same, he unfastened, broke loose, removed and carried away from said premises certain lead water-pipes and a bathing tub, which pipes before, and at the time the defendant removed them, were fastened to boards, and the boards with the pipes fastened to them were nailed to the walls, and the bathing tub in like manner was fastened to the wall and floor.”

Two questions arose on the trial, first, whether the plaintiff was entitled to recover on the count for use and occupation, and, secondly, whether the articles removed by the defendant were fixtures which belonged to the plaintiff, and which the defendant had no right to take away. The court ruled the first point against the plaintiff, to which he excepted, and sued out a writ of error. The other point was decided against the defendant, and he has brought the case into this court by appeal.

It is sometimes difficult to determine whether the facts of a case create a tenancy, but we are...