Geer v. Boston Little Circle Zinc Co.

• Decision Date: 11 June 1907
• Parties: GEER v. BOSTON LITTLE CIRCLE ZINC CO.
• Court: Missouri Court of Appeals

103 S.W. 151

126 Mo. App. 173

GEER v. BOSTON LITTLE CIRCLE ZINC CO.

St. Louis Court of Appeals. Missouri.

June 11, 1907.

1. LANDLORD AND TENANT — LEASES — QUIET ENJOYMENT — IMPLIED COVENANT.

Where no express covenant of quiet enjoyment is contained in a lease, one is implied by law.

2. LANDLORD AND TENANT — DISTURBANCE OF TENANT'S POSSESSION — ACTIONS — PARTIES.

Where a lease was taken in plaintiff's name for the benefit of himself and another, and thereafter an interest was assigned to a third person, plaintiff held the leasehold as trustee of an express trust for himself and his partners, and was therefore entitled to sue alone in his own name for a breach of the lessor's covenant of quiet enjoyment, under Rev. St. 1899, § 541 [Ann. St. 1906, p. 578], declaring that a trustee of an express trust may sue without joining with him the person for whose benefit the suit is prosecuted.

3. FRAUDS, STATUTE OF — PERSONS TO WHOM STATUTE IS AVAILABLE — JOINT ADVENTURES — LEASEHOLD — ASSIGNMENTS.

Where a lease of certain mining ground was taken in the name of one of three persons jointly engaged in operating the mines, no one but the partners interested in the lease could

object that their interests were not evidenced by a written assignment.

4. LANDLORD AND TENANT — SUBLETTING — ASSIGNMENT.

Where plaintiff acquired a lease from the original lessee for only part of the original term, plaintiff was a sublessee, and not an assignee.

5. SAME — SUBLEASE — ORIGINAL LEASE — FORFEITURE — EFFECT.

Where an original lease to defendant provided for forfeiture in certain specified cases, and plaintiff procured a sublease for part of the ground and for a part of the original term, there was no privity of contract between plaintiff and the original lessor authorizing a division of the covenant, so that a forfeiture of the original lease for a breach of such covenant terminated the sublease to plaintiff.

6. LANDLORD AND TENANT — SUBLETTING — CONSENT — EFFECT.

That a landlord assented to a subletting of a portion of the property did not make the sublessee a tenant of the original landlord.

7. SAME — LIABILITY OF SUBTENANT.

A subtenant cannot be sued on the covenants in the original lease, but may be ousted if they are violated.

8. MINES AND MINERALS — MINING LEASES — CONDITIONS.

Where a mining lease provided that the lessee should leave sufficient pillars to support the roof, and authorized a forfeiture for breach thereof, such stipulation was not a mere covenant, but a condition which, if violated, defeated the lessee's estate in the land at the election of the lessor.

9. SAME — FORFEITURE — NOTICE — STATUTES.

Where a mining lease provided for a term of 10 years and for notice of forfeiture by mail, but did not prescribe the term of such notice, the lease was not subject to Rev. St. 1899, §§ 4107, 4108 [Ann. St. 1906, pp. 2233, 2234], requiring 10 days' notice prior to re-entry for condition broken with reference to terms not exceeding two years; nor to section 4109, requiring 60 days' notice before the end of the year in order to terminate tenancies from year to year.

10. SAME — PEACEABLE RE-ENTRY.

Where a mining lease provided for notice of forfeiture by mail to the lessee for breach of a condition concerning the working of the mines, but did not prescribe the term of the notice, a peaceable re-entry by the lessor, immediately following the mailing of notice of forfeiture to the lessee for breach of such condition, was sufficient to terminate the tenancy.

11. LANDLORD AND TENANT — EVICTION OF SUBTENANT — QUIET ENJOYMENT — BREACH OF COVENANT.

Where a subtenant yielded possession in good faith to the paramount title of the original landlord, asserting a forfeiture of the original lease for breach of a condition, there was an eviction affording the subtenant an action against his lessor for breach of the latter's covenant of quiet enjoyment, though the subtenant secretly wished to get rid of his lease.

12. SAME — BURDEN OF PROOF.

Where a sublessee did not contest the original lessor's right to enter for breach of a condition in the original lease, the burden was on such subtenant, in an action against his lessor for breach of the latter's covenant of quiet enjoyment, to prove that the original lessor had the legal right to enter, and that such subtenant yielded to that right.

13. SAME — COVENANTS — TORTIOUS ACTS.

While a lessor does not covenant against the tortious acts of strangers to the title, he does covenant against tortious acts of his own and those claiming under him or over him by paramount title.

14. SAME — SUBTENANT — ORIGINAL LESSOR — TERMINATION — SUBTENANT'S PARTICIPATION.

If a subtenant participates in causing or facilitating a forfeiture declared by the original lessor, in order to get rid of his lease, or for other supposed advantage to himself, instead of out of deference to the paramount title, he thereby waives his right to object to the eviction.

Appeal from Circuit Court, Newton County; F. C. Johnson, Judge.

Action by Frank Geer against the Boston Little Circle Zinc Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

W. H. Curry, for appellant.

GOODE, J.

Damages in the sum of $3,000 are demanded of defendant for breach of a covenant for quiet enjoyment of a leasehold. No express covenant of the kind is contained in the lease, but one is implied by law, as is conceded. Jackson v. Eddy, 12 Mo. 209, 212; Smith v. Thurston, 19 Mo. App. 48; 1 Taylor, L. & T. (9th Ed.) § 304. When the lease was taken, it was for the benefit of W. S. Gunning, as well as plaintiff. In fact, Gunning himself procured the lease, but had it written in plaintiff's name for the benefit of the two. It covered two mining lots, together with a concentrating plant, the tools and machinery therein, and a pile of tailings. The transaction was essentially a mining venture, and two months after the date of the lease W. C. Ball bought a third interest in the enterprise under an agreement. He swore, between himself, Gunning, and Geer, that Geer was to hold and operate the property under the terms of the lease for the three owners. On these facts the court below found Geer was not the trustee of an express trust and could not maintain the action; that his co-owners in the leasehold, Gunning and Ball, were necessary parties. This question is argued by defendant's counsel as though the answer to it depends on whether or not the lease contract was made in plaintiff's name for the benefit of Gunning and Ball, and we are pointed to the fact that, though it may have been made for Gunning's benefit, it could not have been made for Ball's, because Ball was not thought of in the first instance as a partner. If the right of plaintiff to sue stood on the contract having been made in his name for the benefit of the other two parties in interest, this argument would be good; but we think his right rests on the fact that he was a trustee of an express trust. Our statutes (Rev. St. 1899, § 540 [Ann. St. 1906, p. 575]) require every action to be prosecuted in the name of the real party in interest, except as otherwise provided in section 541, which declares that an executor, administrator, trustee of an express trust, or any person expressly authorized by statute, may sue without joining with him the person for whose benefit the suit is prosecuted. It says, further, that a trustee of an express trust, within the meaning of the section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. That statute, instead of restricting the meaning of the phrase "trustee of an express trust," enlarges it to include not only those who are such trustees under the ordinary rules of equity, but those in whose names contracts are made for the benefit of third persons. Pomeroy, Code Rem. (4th Ed.) § 100 et seq; Weaver v. Wabash, etc., Co., 28 Ind. 112, 119; Snider v. Express Co., 77 Mo. 523. That Geer was a trustee of an express trust, of which Gunning and Ball were beneficiaries, is clear, for all the evidence is that the lease was held by the former on an express agreement by which they were to be co-owners and share losses and profits with him. We do not understand that any one but Geer and his partners could question the interests of the latter in the term on the ground that their interests were not proved by a written assignment. Roth Tool Co. v. Champ Spring Co., 93 Mo. App. 530, 67 S. W. 967.

The case was tried without a jury, and at the conclusion of the evidence the court refused all the declarations requested by plaintiff, and, in a written finding of facts, declared plaintiff could not recover, first, because it was not clear the forfeiture declared by the Granby Mining & Smelting Company forfeited his rights, and the plaintiff had consented to the alleged forfeiture, and thereby waived any rights he might have had against the defendant; secondly, because he was not the trustee of an express trust as to both his partners, so as to be able to maintain the suit in his own name without joining them. What we have said disposes of the second finding. In dealing with the first one, it is necessary to recite more of the evidence. Plaintiff was a subtenant under the defendant, a corporation, and the original lessee of the premises in controversy, as well as various other mining lots, from the Granby Mining & Smelting Company, the owner of the fee. The original lease given by the Granby Company was dated November 26, 1900, and ran for 10 years. It did not cover the mill and machinery on the two lots leased by defendant to plaintiff, which properties were placed on the lots by defendant and belonged to it. The Granby Company's lease to the Boston Company (defendant) contained various stipulations, and, among others, one that pillars of ample size and sufficient in number to support the roof of the mines should be left in all drifts in order to prevent the...