Finney v. Cist

• Decision Date: 31 October 1863
• Citation: 34 Mo. 303
• Parties: JOHN FINNEY, Respondent, v. LEWIS J. CIST, Appellant.
• Court: Missouri Supreme Court

34 Mo. 303

JOHN FINNEY, Respondent,

v.LEWIS J. CIST, Appellant.

Supreme Court of Missouri.

October Term, 1863.

Appeal from St. Louis Land Court.

Lackland, Cline & Jamison, for appellant.

So long as the tenant had any legal interest in the land or tenement under the lease, he could not be dispossessed by this form of action; if the term was to expire at the end of ten years, and the tenant by virtue of the lease was entitled to be paid for his improvements, the landlord could not dispossess him under this form of action unless he first tendered the value of the improvements; so also if a tenant be induced to put up valuable improvements upon demised premises under a written agreement that he shall be permitted to enjoy them for a definite period of time, this right cannot be divested by the mere wrongful act of the landlord; the law would not assist in the perpetration of so gross an outrage.

Krum & Decker, for respondent.

I. Unlawful detainer is a statutory action which must be instituted before a justice. The form of the complaint and evidence to be heard are prescribed by the statute. No authority exists to permit other questions or issues to be tried.

The 16th section provides what proof shall be sufficient to warrant a verdict. The issue which the defendant proposed to try, that his landlord, who was assignee of an assignee of the term, was entitled to a renewal of the term because the lessee had performed his covenants, could not be determined in this action; the assignee of the lease was not a party to the action, and could not be bound by any such issue; it would be a farce to compel the plaintiff to litigate this question with all the sub-tenants of the assignee of the lease.

Such a defence is based on the theory, that in equity the assignee of the lessee continues to be the tenant of the plaintiff and is entitled to a renewal; a defence which a justice has no authority to hear, because he cannot enforce a specific performance. (Ridgly v. Stillwell, 28 Mo. 400.)

The proper course for Garnhart was to enjoin the proceedings, and litigate his claim in a court of competent jurisdiction.

The instrument cannot be regarded as a lease for a longer term than ten years.

( a.) Because the term granted in habendum, is limitation in express terms to ten years.

( b.) It would be absurd to renew a lease that had not determined.

( c.) The very existence of a conditional covenant to renew the lease, destroys the idea of a continued term. The continuation and extension of the term is one thing; but a lease to be renewed for ten years contemplates a new contract, and that second lease to be in writing to be without the statute of frauds.

( d.) No case can be found where a covenant to renew a lease was regarded in law or equity as a lease in fact; words in presenti are necessary that this renewal should be a lease in fact; but the words of this covenant are in futuro,“that the lease should be renewed.” The instruments in cases, Thornton v. Payne, 5 John. 74, and Hallet v. Wayne, 3 John. 44, contained words of lease in presenti.

( e.) The condition upon which the renewal depends is the performance of all covenants by the lessee; if this be a lease for twenty or thirty years, the benefit of that condition, if broken, would be wholly lost to the lessor.

II. A breach of covenant in a lease on the part of the lessor, cannot be set up by a tenant of the lessee as a defence to an action of unlawful detainer.

( a.) Because this covenant does not enure to the benefit of the sub-tenants of the lessee. Although the covenant to renew runs with the land, it enures only to the assignee, and not a sub-lessee. The covenantor cannot be made liable to everybody who happens to be in possession, but only to such as stand in the relation of tenants to him, viz., the lessee and his assignee.

( b.) The assignee himself could not have made such a defence; he covenants expressly to return and surrender at expiration of the term; he cannot justify on the ground that the landlord has broken his covenant; his rights remain unimpaired; he has his action at law for breach of covenant, and in equity for specific performance.

The cases in the books which might seem to militate against this doctrine, will be found upon examination to be decisions based upon the construction of the language of particular instruments, and not general principles of law, as 2 Duer, 446; 6 Wend. 569.

These are exceptions to the general rule based on special contract, and serve only to strengthen the general rule.

A breach of covenant by lessor is no defence by tenant to an action for rent. (Tibbetts v. Percy, 24 Barb. 43, and cases cited.)

A breach of covenant not to sell for two years, in a mortgage made by defendant to plaintiff, is no defence at law to an action of ejectment under execution sale, made in violation of such a covenant. (Jackson v. Davis, 18 Johns. 7.)

A covenant to surrender upon the lessor's paying for improvements, is not a condition precedent to a right of reentry. (Tallman v. Coffin, 4 N. Y. Comst. 138.)

An agreement to arbitrate is no defence to an action. (Haggart v. Morgan, 5 N. Y. 1 Seld. 427; Smith v. Compton, 20 Barb. 267.)

BATES, Judge, delivered the opinion of the court.

This is an action for unlawful...