Cook v. Farrah

• Decision Date: 15 June 1891
• Citation: 16 S.W. 692,105 Mo. 492
• Parties: Cook, Appellant, v. Farrah et al
• Court: Missouri Supreme Court

16 S.W. 692

105 Mo. 492

Cook, Appellant, v. Farrah et al

Supreme Court of Missouri, First Division

June 15, 1891

Appeal from Ralls Circuit Court. -- Hon. Thomas H. Bacon, Judge.

Affirmed.

Silver & Brown for appellant.

(1) The court should have given instructions, numbered 1 and 2, as asked by plaintiff. (2) Plaintiff's instruction, numbered 3, should have been given. The evidence shows that the defendant Farrah certainly became plaintiff's tenant by the Murphy assignment of September 22, 1880, which Farrah formally accepted in writing at the time, and, this being the case, he was estopped to assert a title antagonistic to plaintiff, acquired during his holding under plaintiff. Murphy's lease, when Farrah acquired it, had until March 1, 1882, to run; and Farrah's title from the Browns having been acquired on October 20, and December 11, 1880, it falls within the above principle of law. First. A tenant is estopped to deny his landlord's title. Shepard v Martin, 31 Mo. 492; Walker v. Harper, 33 Mo 592; Higgins v. Turner, 61 Mo. 249; Loring v Harmon, 84 Mo. 123. Second. Such estoppel does not depend upon a deed or written lease, but is regarded as an incident to the relation of landlord and tenant. Lowery v. Henderson, 60 Tex. 291. So mere occupation by the tenant will estop him from denying his landlord's title. Coburn v. Palmer, 8 Cush. 124; Towne v. Butterfield, 97 Mass. 105; Gage v. Campbell, 131 Mass. 566. Third. The estoppel not only prevents the tenant from attacking his landlord's title as bad in itself, but also disables him from setting up any outstanding title which the tenant may have subsequently purchased. Blight's Lessee v. Rochester, 7 Wheat. 535; Wilson v. Watkins, 3 Pet. 43; Hodges v. Shields, 18 B. Mon. 828; Ryerson v. Eldred, 18 Mich. 12. Or any title which he may have acquired prior to the date of the lease. Sharpe v. Kelly, 5 Denio, 431. Fourth. The estoppel applies whether the landlord's title be legal or equitable. Cooper v. Smith, 8 Watts, 536. And even when the lessor's possession was itself tortious. Mishner v. Reding, 12 Me. 478. Fifth. The estoppel extends to and will affect the assignee of the leasehold. Doe & Co. v. Alexander, 4 Dev. & Bat. Law, 40; Cooper v. Smith, 8 Watts, 536. Or one taking possession as successor to the tenant with his consent. Tompkins v. Snow, 63 Barb. 523. Or to anyone who takes the place of a tenant or claims under or through him. Furley v. Rodgers, 1 A. K. Wash. 245; Newman v. Mackin, 13 S. & M. 383; Tilghman v. Little, 13 Ill. 239; Jackson v. Davis, 5 Cow. 123. Sixth. So the estoppel applies to an adverse claimant who obtains possession through the tenant. Stewart v. Roderick, 4 W. & S. 188; Doty v. Burdick, 83 Ill. 473. Seventh. And to one who is admitted to defend the action for possession of the land in lien of the tenant. Doe & Co. v. Davis, 4 Dev. & Bat. Law, 300. So the estoppel applies where the tenant has acknowledged two landlords. Carter v. Marshall, 72 Ill. 609; Miller v. Bonsadon, 9 Ala. (N. S.) 317; Sheperd v. Martin, 31 Mo. 492. Applying the above principles of law, it is clear that instruction, numbered 3, as asked by plaintiff, should have been given. (3) Instructions, numbered 2, 3, 4 and 5, given for defendants, were all erroneous. First. There is no place in this case for instructions on the question of adverse possession; it appearing from the evidence that the relation of landlord and tenant existed between plaintiff and Farrah, that fact of itself authorized plaintiff's recovery. Loring v. Harmon, 84 Mo. 123. The estoppel, by reason of the relation of landlord and tenant, applies not only to the tenant, but to one admitted to defend the action for the land in lieu of the tenant. Doe & Co. v. Davis, 4 Dev. & Bat. Law, 300. And applies also as against the tenant when he has acknowledged two landlords. Second. Instruction, numbered 3, given for defendants, did not properly declare the law on the question of adverse possession. The evidence showed that defendants had knowledge of plaintiff's claim of ownership, and that but a minor part of the land was fit for cultivation, and the facts rather fall within the cases of Draper v. Shoot, 25 Mo. 197; Leeper v. Baker, 68 Mo. 400; Miss. Co. v. Vowels, 101 Mo. 225. "A fence is not necessary to constitute adverse possession." 101 Mo. 225. The uninterrupted payment of taxes for twenty-four successive years is powerful evidence of claim of right. Ewing v. Burnet, 11 Peters, 41. Here the taxes were paid by plaintiff and his grantor for almost that period. (4) Instruction, numbered 5, given for defendant was wrong. Farrah having, in writing, on September 22, 1880, acknowledged and accepted a tenancy under plaintiff, he must surrender possession to plaintiff before asserting title by limitation or otherwise. Green v. Munro, 9 Vt. 37; Houston v. Farris, 71 Ala. 510; Ryerson v. Eldred, 18 Mich. 12; Hughes v. Watt, 28 Ark. 153; Doty v. Burdick, 83 Ill. 473; Loring v. Harmon, 84 Mo. 123. Farrah having become plaintiff's tenant and entered into possession in 1880, and this action having been begun in 1887, there is no place for the ten years' bar. (5) Instruction, numbered 6, given for defendants, is erroneous, for the reasons given and authorities cited in point 2, supra, of this brief. First. The surrender of his term by Murphy and the substitution of Farrah, with consent of plaintiff, made September 22, 1880, had the effect of ending Murphy's tenancy, and created a new one in Farrah from said date. Kerr v. Clark, 19 Mo. 132; Matthews v. Tobener, 39 Mo. 115; Hutchison v. Spencer, 79 Mo. 496. Second. Farrah, after having accepted a tenancy on September 20, 1880, under plaintiff, could not thereafter purchase either an outstanding term of years or the fee, if antagonistic to plaintiff's title. He could not buy the alleged title in fee of the Browns; a fortiori he could not so purchase a term of years in Murphy and derive from them. That would be in fact purchasing the adverse title of the Browns. Where the defendant has acknowledged two landlords, he is estopped as to both. Shepard v. Martin, 31 Mo. 492; Carter v. Marshall, 72 Ill. 609; Miller v. Bonsadon, 9 Ala. (N. S.) 317. (6) The instruction given by the court of its own motion was equally erroneous, for the reasons given last, supra, as well as under point 2, supra. It is undoubtedly true that, if a tenant attorns to a stranger, such act is void as against his landlord, and does not affect his possession. But in this case the defendant Farrah first became plaintiff's tenant and thereafter attorned to the Browns, a stranger. The statute and decisions relied on by respondent apply in our favor. The respondents are tripped up by their own authorities.

Reuben F. Roy for respondents.

(1) The deed from Houston, register of lands, to Menefee, was not acknowledged. Stierlin v. Daley, 37 Mo. 483; Dalton v. Fenn, 40 Mo. 109. (2) Both of the tax deeds offered in evidence by plaintiff were defective in their recitals as to notice of sale, simply stating that notice was given "according to law." The particulars as to the manner of giving notice of sale, the length of time of notice, and time and place of sale, and of property to be sold, should have been given, and these particulars were not recited in the tax deeds. Spurlock v. Allen, 49 Mo. 178; Abbott v. Doling, 49 Mo 302; Large v. Fisher, 49 Mo. 307; Bosworth v. Bryan, 14 Mo. 575; Lagroue v. Rains, 48 Mo. 536; Acts of 1843, sec. 22, p. 140; R. S. 1845, secs. 5 and 7, p. 948. (3) The tax deed from John Jameson to Menefee should have recited that the sale was publicly made. Acts, 1843, sec. 3, p. 138; Sullivan v. Donnell, 90 Mo. 278. (4) The court properly refused instruction, numbered 3, asked by plaintiff. First. The instruction should have been as broad as the issue. Greer v. Parker, 85 Mo. 107; Jackson v. Bowles, 67 Mo. 609; Fitzgerald v. Hayward, 50 Mo. 516. Second. The lease from plaintiff to Murphy, read in evidence, was for a term beginning on March 1, 1878, for four years, and the writing itself purports to have been made on February 21, 1880, and is a recital of a former parol lease, thus bearing suspicious marks; while the lease from Brown & Brown to Murphy purports to have been made on January 15, 1877, and is for a term of four years, beginning on March 1, 1877, and the testimony for defendant shows that Murphy went into possession about March 1, 1877, under the Brown lease as the tenant of the Browns. Such being the case, the subsequent attornment of Murphy to Cook and the attornment by Farrah as assignee to Cook were both void. R. S. 1889, sec. 6373; McCartney v. Auer, 50 Mo. 395; Bank v. Clavin, 60 Mo. 559; Rutherford v. Ullman, 42 Mo. 216; Clampitt v. Kelley, 62 Mo. 571; Farrar v. Heinrich, 86 Mo. 521; Schultz v. Arnot, 33 Mo. 172. Third. When suit is brought by the stranger to whom tenant has wrongfully attorned, against the tenant, the tenant can defend on the ground that he came into possession under lease from prior lessor and that the attornment was void; and the prior landlord can be made a party defendant and set up the same ground of defense. Neither landlord nor tenant is estopped to make the defense. Schultz v. Arnot, 33 Mo. 172; Farrar v. Heinrich, 86 Mo. 521. Fourth. The case of Shepard v. Martin, 31 Mo. 492, cited by counsel for appellant, on pages 38 and 40 of appellant's brief, is not authority on this point, for the reason that that case was one where the tenant leased the ground without the house thereon from one landlord, and leased the house from the other landlord, and is not a case of two leases to same property. Fifth. The record in this case does not show that Farrah appeared as a witness in this case, and the testimony of defendant, A. F. Brown, shows that Farrah has sold the land and is now...