Dale v. Parker

• Decision Date: 04 April 1910
• Citation: 143 Mo. App. 492,128 S.W. 510
• Parties: DALE v. PARKER et ux.
• Court: Missouri Court of Appeals

128 S.W. 510

143 Mo. App. 492

DALE v. PARKER et ux.

Springfield Court of Appeals. Missouri.

April 4, 1910.

Rehearing Denied May 3, 1910.

1. APPEAL AND ERROR (§ 500)—REVIEW—ABSENCE OF BILL OF EXCEPTIONS.

Where there was a motion in the trial court to dismiss, but the bill of exceptions does not show what disposition was made thereof, and in the motion for new trial appellants made no complaint of the court's action on the motion to dismiss, the court's ruling on the motion to dismiss cannot be reviewed.

2. APPEAL AND ERROR (§ 302)—OBJECTIONS BELOW—MOTION FOR NEW TRIAL—SPECIFICATION OF REASONS—STATUTORY PROVISIONS.

Under Rev. St. 1899, § 640 (Ann. St. 1906, p. 660), providing that all motions shall be accompanied by a written specification of the reasons on which they are founded, and that no reason not so specified shall be urged in support of the motion, the trial court has the right to have the motion for new trial specify the alleged errors complained of, so that it may have an opportunity to correct its own mistakes without putting the parties to the expense and delay of an appeal, and a motion for new trial, which does not state in whose behalf the error in admitting or rejecting testimony was committed, but simply states that the court erred in admitting and excluding evidence, is too indefinite to comply with the statute and insufficient to preserve matters of exception, so as to require their consideration by the appellate court.

3. LANDLORD AND TENANT (§ 63)—RIGHT TO SHOW TERMINATION OF LANDLORD'S INTEREST.

While a tenant cannot deny that his landlord had title at the commencement of the term, he may show that the landlord's interest has terminated.

4. LANDLORD AND TENANT (§ 290)—RECOVERY OF POSSESSION BY LANDLORD—RIGHT OF ACTION.

A written contract between a son and his mother, who was the owner of land, specified that the son had rendered material help and financial assistance to her in the past, and in consideration thereof and of her love and affection for him, and the payments, stipulations, and conditions to be paid, kept, and performed by him or his heirs in case of his death, the son should become possessed in fee simple of the lands, he to pay his mother $50 per annum during her life, pay the taxes on the property, and also $300 to certain other specified heirs, and to have immediate possession of the land, his heirs to hold, occupy, and use it in case of his death, and, if the son failed to make the payments, then the mother had the right to enter and take possession. The contract was signed, acknowledged, and recorded in the office of the recorder of deeds. Held, that the contract, being based upon a valuable consideration and executed with all the formality of a deed, was enforceable, and the son thereunder was entitled to immediate possession of the land, and, by making the payments, would become its owner, and his interest did not terminate at the mother's death, so as to preclude his recovery in forcible entry and detainer against persons in possession under a lease from him expressly made to terminate at the mother's death.

5. LANDLORD AND TENANT (§ 139)—TERM OF LEASE—EMBLEMENTS.

That there is a growing crop on premises will not extend the term of a tenant's lease; the crop being an emblement which the tenants have a right to go upon the premises and harvest.

6. LANDLORD AND TENANT (§ 139)—EMBLEMENTS.

The right to the emblements belongs to the tenant for life because of the uncertain nature of his estate, and lest he should be deterred from a proper cultivation of the lands, and if the term is so uncertain that the tenant cannot tell when he sows his crop that the tenancy will continue until he shall have harvested it, he will be entitled to the crops.

Appeal from Circuit Court, Greene County; George Pepperdine, Special Judge.

Action by Harris K. Dale against Benjamin F. Parker and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

Delaney & Delaney and A. S. Cowden, for appellants. J. T. White and W. D. Hubbard. for respondent.

GRAY, J.

This action was begun before a justice of the peace in Campbell township, Greene county, under the unlawful detainer act, for the possession of certain real estate situated in said county. It was afterwards removed to the Greene county circuit court by the defendants, on a writ of certiorari. On November 23, 1906, the cause was tried before Hon. George Pepperdine, Special Judge, sitting as a jury, resulting in a judgment in favor of the plaintiff for the possession of the property, together with damages in the sum of $86.32, and $10 monthly rents and profits; the same being double the amount of damages and rents, as provided by the unlawful detainer act. The defendants appealed the cause to the St. Louis Court of Appeals, and the cause was docketed in that court for trial at its October term, 1907, but was transferred to this court.

Appellants Benjamin F. Parker and Emma A. Parker are husband and wife, and the respondent, Harris K. Dale, and the appellant Emma K. Parker, are brother and sister, and the children of one Catherine B. Dale. The respondent claims title to the property through a contract made with Catherine B. Dale. On the 7th day of January, 1896, he made, executed, and delivered to the appellants a lease upon the real estate, reserving a rental of $50 a year, payable on the 20th day of October of each year, and terminating upon the death of said Catherine B. Dale. Catherine B. Dale died on the 4th day of March, 1906. On the 20th day of March, 1906, the respondent gave notice to the appellants in writing that he demanded the immediate possession of the premises. The appellants refused to surrender possession, and the suit was commenced. At the time the suit was commenced, there was a growing crop of wheat on part of the land, which would mature the following June. When the case was in the circuit court, the defendants filed a motion...