Garroutte v. White

• Decision Date: 06 June 1887
• Citation: 4 S.W. 681,92 Mo. 237
• Parties: Garroutte v. White, Appellant
• Court: Missouri Supreme Court

4 S.W. 681

92 Mo. 237

Garroutte v. White, Appellant

Supreme Court of Missouri

June 6, 1887

Appeal from Greene Circuit Court. -- Hon. W. F. Geiger, Judge.

Affirmed.

O. H Travers for appellant.

(1) The relation of landlord and tenant did not exist between the father and son, and plaintiff, therefore, cannot maintain this action. There was no express tenancy. (2) Nor was there an implied tenancy. The payment of rent does not of itself constitute a tenancy, nor is the receipt of rent anything more than a prima facie acknowledgment of tenancy. Taylor on Land. and Ten., sec. 23. And the party paying is always at liberty to explain how, why, and in what capacity he pays. Doe v. Francis, 2 M. and Rob. 57. And to constitute a tenancy the payment of rent must be made by the party in the capacity of tenant. Strahan v. Smith, 4 Bing 91. (3) The defendant disclaimed a tenancy all the time. The lease being for a period of less than two years could not be assigned without the written assent of plaintiff. 1 R. S sec. 3075. Respondent's only remedy against appellant is under Revised Statutes, section 3076. This written assent was not given. Taylor on Land. and Ten., sec. 178. (4) There is nothing in the evidence to show that plaintiff was in danger of losing his rent, and before the action of attachment can be maintained for rent the landlord must be exposed to the danger of losing his rent. Kleun v. Vinyard, 38 Mo. 447; Morris v. Hammerle, 40 Mo. 489. (5) The court erred in giving the instructions for plaintiff.

W. O. Hubbard for respondent.

OPINION

Brace, J.

This is a suit by attachment for rent, commenced before a justice of the peace. The defendant pleaded in abatement to the affidavit filed for an attachment, and the jury found for plaintiff on the issues joined by the plea; the defendant refusing to further plead, the cause was tried by the court and judgment rendered for the plaintiff.

There was no conflict in the evidence in regard to any of the material facts, which were substantially as follows: Six or seven years before this suit was commenced, the plaintiff by oral agreement rented a farm to John W. White, the father of the defendant, for one-third of the crop to be raised each year on the premises. John W. White had several grown sons living with him on the farm, among them the defendant, each of whom he every year permitted to cultivate for himself portions of the said farm, requiring them only to deliver to the plaintiff such portions of the crop they should raise thereon as would be coming to the plaintiff under his contract with him, being the same as he himself paid as rental under the agreement. Under this arrangement, the defendant and his brother for some years cultivated different portions of the farm, delivering to the plaintiff each year his share of the crop raised under said agreement. In September, 1882, the defendant put in a crop of wheat on thirty-seven acres of the farm which he had previously cultivated, and during the ensuing seasons cultivated other portions of the farm in corn and oats. On the fifteenth day of December, 1882, plaintiff and John W. White made the following written agreement:

"Article of agreement made and entered into between Wm. B. Garroutte of the first part, and J. W. White of the second part, witnesseth: That the party of the second part agrees to deliver to the party of the first part full and peaceable possession of his farm, without law, to the party of the first part, on the first day of August, 1883, situate on sections 5, 8, 9, township 28, range 24, in Greene county, Missouri; and that the party of the second part agrees to pay one-third of the grain raised on the land in cultivation, and he further agrees to put all the broke land in small grain, and stack one-third of the wheat on said land, and feed the straw out on said land, without any danger to the growing crops by stock in the enclosures, and further agrees to cut no growing timber. Given under our hands this fifteenth day of December, 1882."

Plaintiff testified that his object in making this agreement was to get possession of the farm, and he thought he could do so only by making an agreement with John W. White; he did not make the agreement with the defendant because he did not think he was the proper party to make it with, and that this contract embodied all the terms of the oral agreement that had been existing for six or seven years between John W. White and himself, and applied to all the land he had rented him, including the land cultivated by the defendant, and the wheat land for the rent of which this suit by attachment is brought. In August, 1883, John W. White and his family, including the defendant, who continued a single man, residing with his father, removed...