Del Commune v. Bussen

• Decision Date: 02 May 1944
• Docket Number: No. 26618.,26618.
• Citation: 179 S.W.2d 744
• Parties: DEL COMMUNE v. BUSSEN.
• Court: Missouri Court of Appeals

179 S.W.2d 744

DEL COMMUNE v. BUSSEN.

No. 26618.

St. Louis Court of Appeals. Missouri.

May 2, 1944.

Rehearing Denied May 19, 1944.

Appeal from Circuit Court, Ste. Genevieve County; Norwin D. Houser, Judge.

"Not to be reported in State Reports."

Unlawful detainer by Louise H. Del Commune against Charles Bussen. From a judgment for plaintiff, defendant appeals.

Affirmed.

Fred J. Hoffmeister and Harry Gershenson, both of St. Louis, for appellant.

Emmett Golden and Arthur G. Heyne, both of St. Louis, for respondent.

ANDERSON, Judge.

On June 2, 1943, Louise H. Del Commune instituted this unlawful detainer proceeding against Charles Bussen, in the Justice of the Peace Court of Charles Dempsey, in Ste. Genevieve County. The property involved was a rock quarry in said county. The suit was removed by certiorari to the Circuit Court of Ste. Genevieve County, where, a jury having been waived, the cause was tried to the court and resulted in a finding and judgment for plaintiff. Thereupon defendant appealed from said judgment to this court.

The evidence shows that appellant went into possession of the premises under a written agreement, dated May 22, 1937, which agreement recited that in consideration of the covenants and agreements to be kept and performed by appellant, respondent "does hereby sublet unto the said Lessee the following described tract of land, situate in the County of Ste. Genevieve and State of Missouri." The agreement then contains a metes and bounds description of the property, and continues:

"Being the same land leased by Frank Burgert and Elizabeth Burgert to William Baumstark by written lease dated October 23rd, 1909, recorded in Book `72' at page 89, of the Land Records of Ste. Genevieve County, Missouri, and amended by that certain written agreement dated December 5th, 1912, between the aforementioned Frank and Elizabeth Burgert and William Baumstack, and recorded in Book `75' at page 182 of the Land Records of Ste. Genevieve County, Missouri; to which leasehold the Lessor herein, Louise H. Del Commune, succeeded by virtue of that certain Executors' Deed dated June 23, 1934, and recorded in Book `107' at page 432 of the Land Records of Ste. Genevieve County, Missouri, whereby Eulalia Baumstark and Francis J. Rozier, Executors of the Estate of William Baumstark, deceased, conveyed unto Charles L. Del Commune and Louise H. Del Commune all the right, title and interest of the said William Baumstark, deceased, in and to the above mentioned lease."

As fixed by said writing, the term of said lease was for 5 years, terminating May 21, 1942, with an option in the lessee to renew for a further term of 5 years, provided the lessee notified the lessor in writing at least 90 days before the above expiration date of his intention so to do.

The lease also provided that appellant should pay the lessor the sum of six (6) cents per cubic yard for all stone quarried upon the premises by said lessee during the term of the lease, the amount to be ascertained and paid monthly. The lease also contained a provision that if in any one year the royalties from stone quarried did not equal the sum of $85, the lessee would pay to the lessor at the end of such year, a sum sufficient, which, added to the amount of the royalties already paid in that year, would equal the sum of $85.

Plaintiff testified that up until December, 1941, appellant paid her the money due under the terms of the lease, but that appellant never notified her in writing prior to May 22, 1942, that he desired to renew the lease.

Plaintiff further testified that prior to December, 1941, she received from appellant approximately $25 per month as rent for the premises.

Appellant offered in evidence Exhibit No. 1, a warranty deed from Frank J. Burgert and Elizabeth M. Burgert, his wife, to appellant, dated September 5, 1940, conveying certain land to appellant. The land here in dispute was embraced in the description of the land conveyed by said deed.

Defendant's Exhibits 2 and 3, also offered in evidence, were warranty deeds executed subsequent to the lease of May 22, 1937, and conveyed lands adjoining the property in question.

On cross-examination appellant testified that he went into possession of the premises under the lease from respondents of May 22, 1937, and started to pay rent to Mrs. Del Commune from that date; that on January 23, 1942, he paid Mrs. Del Commune $267.72 for royalties for stone removed for the months of October, November, and December, 1941. Said payment was the last he ever made, which was approximately a year and a half after he was supposed to have acquired the property.

At the conclusion of the evidence, appellant requested the court to give a declaration of law in the nature of a demurrer to the evidence. The court denied this request, and appellant duly saved an exception to the court's ruling.

Thereupon the court made and filed the following findings of fact and declarations of law:

"1. Charles Bussen and a Mr. Del Commune had possession of the premises in question as partners in the quarry business until the death of Mr. Del Commune in 1936.

"2. Louise H. Del Commune, as lessor, and Charles Bussen, as lessee, signed Exhibit A — a five year written lease of a stone quarry (the premises in question) on May 22, 1937. The lease contained a right of renewal for five years provided lessee served lessor with notice of renewal at least thirty days before the expiration date of the lease.

"3. On May 22, 1937, Charles Bussen was in possession of the premises, and on entering into the lease of May 22, 1937, he continued in possession thereof as the tenant of Louise H. Del Commune, recognizing Louise H. Del Commune as his landlord, and during the remainder of 1937, after May 22nd, and during the years 1938, 1939, 1940 and 1941, paid Louise H. Del Commune an average of twenty-five dollars per month as rent for the premises in the form of royalty payments for stone taken from the quarry.

"4. In January, 1942, Charles Bussen made the payment of rent for October and November, 1941; that was the last payment made by Charles Bussen.

"5. On September 5, 1940, Frank J. Burgert and Elizabeth M. Burgert, his wife, executed a warranty deed to Alvin Charles Bussen to certain lands, including the premises in question.

"6. In March, 1942, Frank J. Burgert and his wife and Albert J. Burgert and wife executed two warranty deeds to Charles Bussen to certain lands, including the premises in question.

"7. No notice of intention to renew the lease was served by Charles Bussen on Louise H. Del Commune prior to May 22, 1942 (the date of the expiration of the five year term).

"8. On May 22, 1942, the term of the lease between plaintiff and defendant expired, and defendant's right to possession terminated.

"9. Defendant thereafter willfully and without force held over the premises.

"10. Plaintiff was entitled to the immediate possession May 22, 1942, and thereafter.

"11. By virtue of defendant's unlawful holding over, no demand in writing under section 2833 of the statutes was necessary. After the termination of the time for which premises are demised to a lessee, the lessee is subject to a suit for unlawful detainer without any demand in writing for the delivery of the possession.

"12. At the time of the trial defendant was still holding possession of the premises with no agreement existing between plaintiff and defendant for occupancy thereof.

"13. The warranty deeds to defendant, executed subsequent to the lease of May 22, 1937, and after defendant had recognized plaintiff as his landlord, have no bearing on plaintiff's right to possession, In the Absence of Proof That Plaintiff Had Parted From Her Title.

"14. The defendant cannot interpose as a defense a question affecting the title to the property involved in a suit for unlawful detainer.

"15. Plaintiff is entitled to a judgment for possession and rents and profits from May 22, 1942, to date of restitution, and $1.00 damages."

Thereafter, judgment for plaintiff, pursuant to said findings of fact and declarations of law, was entered in said cause.

Appellant assigns as error the refusal of his requested declaration of law in the nature of a demurrer to the evidence, and in support of this assignment states that there was a complete failure of proof connecting the property mentioned in the evidence with the property described in the petition. The record shows that plaintiff introduced in evidence a lease, Plaintiff's Exhibit A, by the terms of which the premises described in the petition were sublet to respondent for a term of 5 years from May 22, 1937. There was...