Eurengy v. Equitable Realty Corp.

• Citation: 107 S.W.2d 68,341 Mo. 341
• Parties: Stella Swope Eurengy et al. v. Equitable Realty Corporation, Appellant
• Decision Date: 30 June 1937
• Court: United States State Supreme Court of Missouri

107 S.W.2d 68

341 Mo. 341

Stella Swope Eurengy et al. v. Equitable Realty Corporation, Appellant

Supreme Court of Missouri

June 30, 1937

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge.

Affirmed.

Charles W. German and George L. Walker for appellant.

(1) The notice to terminate the lease was not signed by the necessary parties. Howard v. Manning, 79 Okla. 165, 192 P 358; Baum v. Lincoln Highway B. & L. Assn., 108 N J. Law 534, 158 A. 467; Hurst Automatic Switch & Signal Co. v. Trust Co., 216 S.W. 954; Cochran v. Gulf Refining Co., 139 La. 1010, 72 So. 718; Noble v. Brooks, 224 Mass. 288, 112 N.E. 649; Jones on Mortgages, secs. 978, 979, p. 363, sec. 876; Krost v. Moyer, 207 N.W. 311, 166 Minn. 153; Hawkins v. Klein, 255 P. 570, 124 Okla. 161; 16 R. C. L., sec. 629, p. 1113; Matthews v. Mo. Pac. Ry. Co., 142 Mo. 645; Craig v. Ry. Co., 197 S.W. 141, 217 Mo. 516. (2) This suit must fail because of the absence of certain necessary and indispensable parties. Chattanooga Savs. Bank v. Crawford, 206 Ala. 530, 91 So. 316; Lebeck v. Fort Payne Bank, 115 Ala. 447, 22 So. 75; Huddleston v. Fuller, 155 So. 556, 229 Ala. 74; Sampson v. Mitchell, 125 Mo. 217, 28 S.W. 768; Sec. 702, R. S. 1929; United Sheet & Tin Plate Co. v. Hess, 159 F. 889; Ballew Lbr. & Hardware Co. v. Ry. Co., 288 Mo. 473, 232 S.W. 1015; Mann v. Bailen, 200 N.E. 383; Commonwealth Trust Co. v. Smith, 266 U.S. 152, 69 L.Ed. 219; Gaumer v. Snedeker, 330 Ill. 511, 162 N.E. 137; Silverstein v. First Natl. Bank, 231 Ala. 565, 165 So. 827; Alabama Civil Code, 1923, sec. 5707. (3) The notice of intention to terminate the lease does not conform to the terms and provisions of the lease nor to the requirements of law. 2 Thompson on Real Property, sec. 1429, p. 568; Cleveland v. Salwen, 292 Pa. 427, 141 A. 155; Hill Co. v. Pingue, 179 Cal. 759, 178 P. 952, 3 A. L. R. 669; Cook v. Decker, 63 Mo. 328; Welch v. Ashby, 88 Mo.App. 400; 16 R. C. L., sec. 629, p. 1113, sec. 648, p. 1128; Bald v. Auto Painting Co., 18 S.W.2d 902; Tri-Bullion Smelting & Dev. Co. v. Ozark Smelting & Min. Co., 24 N. M. 651, 176 P. 817; Torrey v. Adams, 254 Mass. 22, 149 N.E. 618, 43 A. L. R. 1447; Carbonette v. Elms, 261 S.W. 748; 2 Thompson on Real Property, sec. 1600, p. 791; Vaughn v. Locke, 27 Mo. 290; Wolff v. Shinkle, 4 Mo.App. 197. (4) The attempted forfeiture and cancellation of the lease was waived by rent taken and received after May 31, 1933, the default date specified in the notice. Kenny v. Seu Si Lun, 101 Minn. 253, 112 N.W. 220; Grand Central Public Market v. Kojima, 54 P.2d 786; Thompson on Real Property, secs. 1440, 1441, 1929 Supp.; Stromberg v. Western Tel. & Const. Co., 86 Ill.App. 270; Horn v. Peteler, 16 Mo.App. 438. (5) The tax default was cured by the receipt of rentals after May 31, 1933, and hence could not form the basis for the decree of forfeiture November 24, 1934. (6) Under the partition suit the circuit court had acquired exclusive jurisdiction of the property and such jurisdiction cannot be ousted by this proceeding. Sec. 1545, R. S. 1929; State ex rel. v. Holtcamp, 245 Mo. 655; Dildine v. DeHart, 293 Mo. 393.

Ryland, Stinson, May & Thompson, Lathrop, Crane, Reynolds, Sawyer & Mersereau, Wilson, Bundschu & Bailey, Horace F. Blackwell, Jr., and J. G. Vineyard for respondents.

(1) The notice to terminate the lease was signed by the necessary parties. Otrich v. Railroad Co., 154 Mo.App. 437, 134 S.W. 665; Weil v. Posten, 77 Mo. 287; Craig v. Railroad Co., 271 Mo. 516, 197 S.W. 141; Jones on Mortgages (4 Ed.), secs. 866, 976; Woods v. Hilderbrand, 46 Mo. 286; Masterson v. Railroad Co., 72 Mo. 347; Kennett v. Plummer, 28 Mo. 145; Hunter v. Henry, 181 S.W. 598; Logan v. Railroad Co., 43 Mo.App. 75; Hurst Automatic Switch & Signal Co. v. Trust Co., 291 Mo. 54, 216 S.W. 958; Armour Packing Co. v. Wolff & Co., 59 Mo.App. 668; Schiffman v. Schmidt, 154 Mo. 211, 55 S.W. 451; 2 Perry, Trusts & Trustees (7 Ed.), secs. 473, 476. (2) There was no defect of parties plaintiff. Craig v. Railroad Co., 271 Mo. 523, 197 S.W. 141; Kennett v. Plummer, 28 Mo. 142; Woods v. Hilderbrand, 46 Mo. 284; Mo. R. E. & L. Co. v. Gibson, 282 Mo. 75, 220 S.W. 676; Terminal Ice & P. Co. v. Am. Fire Ins. Co., 187 S.W. 565; R. S. 1929, secs. 699, 702. (3) The notice of intention to terminate the lease does conform to the terms and provisions of the lease and the requirements of law. Mooers v. Martin, 12 S.W. 522, 23 Mo.App. 656; Fisher v. Chitty, 62 Mo.App. 405; 16 R. C. L., p. 1128, sec. 648; Bald v. E & J Auto Painting Co., 18 S.W.2d 902. (4) The forfeiture and cancellation of lease was not waived by rent received after May 31, 1933, the default date specified in the notice. Mansur v. Chamberlain, 144 S.W. 510; Board of Trade Office Bldg. Co. v. Shannon Grain Co., 21 S.W.2d 914; Puerto Rico Ry. L. & P. Co. v. United States, 249 F. 18; Blank v. Independent Ice Co., 133 N.W. 344; Fleming v. Fleming Hotel Co., 61 A. 158; Kenny v. Seu Si Lun, 101 Minn. 253, 112 N.W. 220; Grand Cent. Public Market v. Kojima, 54 P.2d 786; Lindeke v. Associates Realty Co., 146 F. 639. (5) The tax default was not cured by the receipt of rentals by lessors after May 31, 1933. 2 Tiffany, Landlord & Tenant, p. 1092; 36 C. J. 391, sec. 1284; Sagal v. Mann, 95 A. 7; Cox v. Sloan, 158 Mo. 411, 57 S.W. 1052; Case Threshing Machine Co. v. Matthews, 188 Mo.App. 429, 174 S.W. 198; Sidell Lbr. Co. v. Weaver, 184 S.W. 484. (6) Independent of the notice and forfeiture by lessors, the receiver was justified in surrendering the lease. 1 Taylor's Landlord & Tenant (9 Ed.), sec. 136(a); Quincy Mo. Pac. Railroad Co. v. Humphreys, 145 U.S. 82, 36 L.Ed. 632; New York, P. & O. Railroad Co. v. Railroad Co., 58 F. 277; North K. C. Bridge & Railroad Co. v. Leness, 82 F.2d 12; City and County of Denver v. Stenger, 295 F. 817. (7) The cancellation of lease and restoration of the property and the possession thereof to the owners was justified by the exercise of the general equity powers of the trial court. Abernathy v. Orton, 71 P. 329; St. Paul Trust Co. v. Mintzer, 67 N.W. 659; Goodman v. Malcom, 48 P. 442; Magness v. Harris, 98 S.W. 363; 21 C. J. 957, sec. 93; Woolston v. Pullen, 102 A. 461; First Cong. Church v. Terry, 107 N.W. 305; Roach v. McKee, 265 N.W. 264; Pike v. Wassell, 94 U.S. 711; 67 C. J. 615, sec. 11; R. S. 1929, secs. 998, 2616, 2626; Bushman v. Bushman, 279 S.W. 125; Ex parte Devoy, 263 S.W. 1070; Stipp v. Bailey, 62 S.W.2d 482; State ex rel. Hampe v. Ittner, 263 S.W. 158; 21 C. J. 955, sec. 93; Abel v. Weesten, 136 S.W. 867; Anderson v. Hammon, 24 P. 229; Howerton v. Kansas Nat. Gas Co., 106 P. 51; 16 R. C. L., p. 1115, sec. 632; Stevenson v. Natl. Bank, 39 F.2d 18; Lowther Oil Co. v. Miller Sibley Oil Co., 44 S.E. 433; Gadbury v. Ohio & I. Consolidated Natural & Illuminating Gas Co., 67 N.E. 257; 16 R. C. L., pp. 1152, 1153, secs. 672, 673, 674; Moffett v. Butler Mfg. Co., 46 S.W.2d 869; St. Louis v. Buselaki, 80 S.W.2d 853. (8) The circuit court had complete jurisdiction to render the decree in this case unaffected by the pending partition suit between some of the parties to this suit. Dildine v. De Hart, 293 Mo. 393; Haeussler v. Mo. Iron Co., 110 Mo. 188; Dixon v. Finnegan, 182 Mo. 111; 47 C. J., p. 293, sec. 62, p. 380, sec. 267; 20 R. C. L., p. 741, sec. 24.

E. R. Morrison for Equitable Realty Corporation.

OPINION

PER CURIAM

This is an action originally instituted for the recovery of $ 47,967.50 as rents under a lease and for $ 42,778.16 for taxes assessed against the demised premises for which, under the lease, defendant was obligated but had failed to pay and for the appointment of a receiver to collect the income from premises. The bill was later amended asking that the lease on such premises be canceled and that possession be delivered to the owners. The decree of the chancellor below was for plaintiffs and the named defendant has appealed. The motion to dismiss this appeal filed here by the receiver as amicus curiae is hereby dismissed and we will consider the appeal on the merits.

On December 2, 1921, the then six owners of undivided interests in two lots situated at the northeast corner of Twelfth and Walnut Streets in Kansas City leased said premises for a period of 107 years, 8 months which lease was assigned on January 1, 1930, to Albert Schoenberg. He, on May 31, 1930, placed a deed of trust on the leasehold estate to secure the payment of $ 300,000 evidenced by a number of promissory notes, with Armwell L. Cooper, as trustee, who is joined as a defendant. Thereafter on October 1, 1931, Schoenberg assigned the lease to the Equitable Realty Corporation, the appellant, which took possession of the property under the lease.

Margaret Miller, one of the lessors, in 1928 conveyed in trust an undivided interest in the premises. The Fidelity National Bank & Trust Company of Kansas City, which we will refer to as Trust Company, succeeded to the trust. It refused to join as a party plaintiff so has been joined as a party defendant.

On January 9, 1934, the then owners of the fee served notice on appellant of their intention to forfeit the lease at the end of ninety days because of its defaults in payment of rents and taxes.

On January 31, 1934, the plaintiff filed suit and on the same day a receiver was appointed.

On November 24, 1934, a decree was entered in favor of plaintiffs holding that the lessee had failed to remedy the defaults specified in the notice and that the lease was terminated by the owners of the property; that plaintiffs and the defendant Trust Company, as trustee, were all the owners of the property and were entitled to immediate possession of the premises; that because of the termination of the lease Cooper, as trustee, and the beneficiaries of that trust deed had no interest in the...