Gallagher v. Delargy

• Decision Date: 31 March 1874
• Citation: 57 Mo. 29
• Parties: JOHN GALLAGHER, et al., Respondents, v. JAMES DELARGY, Appellant.
• Court: Missouri Supreme Court

57 Mo. 29

JOHN GALLAGHER, et al., Respondents,

v.JAMES DELARGY, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

G. Pittman Smith and Polk & Causey, for Appellant.

Joseph Dickson, for Respondents.

VORIES, Judge, delivered the opinion of the court.

This suit was brought before a justice of the peace. The action was for unlawful detainer. The complaint charges that the plaintiff on the 30th of January 1861, leased certain premises to the defendant, for the term of ten years, from the 30th of March 1861, which term had fully expired; that defendant refused to deliver possession of the premises to plaintiff although requested so to do; that he unlawfully detained the possession of the same, after demand made in writing for the possession thereof; that the monthly value of the rents and profits of the premises was twenty dollars; that plaintiff has been damaged by the detention, etc.; and the plaintiff prays judgment, etc. The action was commenced on the 19th day of May, 1871.

A judgment was rendered by the justice in favor of the plaintiff, from which judgment the defendant appealed to the St. Louis Circuit Court, where judgment was again rendered in favor of the plaintiff, from which an appeal was taken to the general term of said court.

At the October term for 1872, of the said court at general term, the death of the plaintiff was suggested of record, and on the 22nd day of January 1873, John T. Fitzwilliam, administrator of the estate of the plaintiff, entered his appearance as plaintiff in the cause.

On the 19th of March 1873, John Gallagher, Ellen Jane Duross, wife of James Duross, and John E Carey heirs of Esther Gallagher, deceased, appeared as parties plaintiff, and by leave of the court and on their motion, it was ordered by the court that a summons issue to James Delargy, defendant, notifying him that unless he appeared at the next term of the court, and within the first four days thereof, and show cause to the contrary, the suit would be revived in the name of said heirs.

The summons was served on the defendant in due time, and on the 20th day of May 1873, the defendant appeared and filed his objections to the revival of the suit in the name of said heirs, on the ground that the application had not been made in time; that the heirs should have been made parties on or before the third term of the court after the death of the original plaintiff had been suggested--which he insisted had not been done--and also on the ground that one of the heirs had transferred his interest in the premises in controversy.

These objections were heard and overruled by the court and the action revived in the names of said heirs, to which the defendants excepted.

The court afterwards affirmed the judgment rendered at special term, and the defendant appealed to this court. On the trial before the jury in the Circuit Court, the plaintiff was examined as a witness and testified that she had owned the premises in controversy, since the year 1849; that in January 1861, she leased the premises to the defendant for a term of ten years, at a rent of twenty-five dollars for the term; that there was a written lease which was signed by defendant and herself; that the lease was written by esquire McDonald, and signed in his office, and that McDonald had subscribed it as a witness. The witness produced the lease and exhibited it to the court; she testified that at the time she purchased the land sued for she was a married woman, and continued to be such until the death of her husband about four years since; that her husband lived in Ireland, and came over to see her once or twice, remained a short time and returned to Ireland, and never returned; that her husband was not in this country when the lease was executed, and has never been at any time since; that the defendant had resided on the land and made improvements on it for two or three years before the lease was executed; that the land was a small three square piece of land and but of small value at the time the defendant went into the possession of it.

The plaintiff then offered the lease in evidence, which was in the ordinary form and was for a term of ten years, from the 30th of March 1861, the rent for the whole term being $25.00. It purported to be signed by plaintiff and defendant, the defendant making his mark to his name, and the name of Philip McDonald subscribed thereto as a witness.

The defendant objected to the introduction of the lease in evidence, on the ground, 1st, that it was not competent evidence; 2nd, that it was executed by a married woman without her husband joining therein, and was therefore void; 3rd, that defendant's name was subscribed thereto, without his knowledge or consent.

These objections were overruled by the court and the lease read in evidence, and the defendant excepted.

The plaintiff then introduced a witness who testified, that he was well acquainted with Philip McDonald, had seen him write and was well acquainted with his handwriting and that his signature to the lease was in his handwriting.

The defendant offered evidence which tended to prove that he had entered into the possession of the premises sued for, under a contract of purchase from the plaintiff, some two years before the time at which the lease purported to have been executed; that plaintiff had promised to make him a deed for the land, and that he had made valuable improvements on the premises before the date of the lease; that he had never executed the lease or held possession under it, but had always held it nnder the contract of purchase, and knew nothing of the lease until this suit was brought. Several witnesses were also introduced who testified, that plaintiff had told them that she had sold the land to the defendant. One of the defendant's witnesses testified that he was present when a lease was executed by plaintiff to defendant, for the land in controversy, for the term of ten years; his impression was that the lease was executed in February 1861; that the lease was executed in ‘Squire McDonalds's office, was written by him and signed by plaintiff; that defendant was not present, but that his wife was, and after plaintiff signed the lease, McDonald asked defendant's wife to sign it; that she said she could not write, and McDonald then wrote her name to the lease, and defendant's wife made a cross mark to the name; that witness did not know whether the name signed was the name of defendant, or of defendant's wife. Said witness also testified that he had often heard defendant, while he resided on the land, speak of the lease, but that he claimed the land as his own; that he had never heard him deny the execution of the lease or object to it in any way; that he had spoken with witness about the lease often, after its execution. The defendant also introduced evidence impeaching the character of plaintiff, for truth and veracity. There was also evidence tending to prove that plaintiff had resided in this country for about twenty years; that she and defendant were acquainted in Ireland; that her husband remained in Ireland, never becoming a citizen of the United States; had only visited this country and remained but for a short time. The court instructed the jury as follows:

“1st. If the jury find for the plaintiff, they will assess as damages, all the rents and profits due and owing up to this time, for the premises unlawfully detained; and they will further find the monthly value of the rents and profits of said premises.”

“2nd. If the jury find from the evidence that plaintiff leased the premises in question to defendant for the term of ten years, from the 30th day of March 1861, and that defendant unlawfully withholds possession of said premises, after the expiration of said lease, then they must find for the plaintiff.”

The defendant objected to these...