Gillett v. Mathews

• Decision Date: 31 January 1870
• Citation: 45 Mo. 307
• Parties: V. C. GILLETT, Defendant in Error, v. BENJAMIN MATHEWS, Plaintiff in Error.
• Court: Missouri Supreme Court

45 Mo. 307

V. C. GILLETT, Defendant in Error,

v.BENJAMIN MATHEWS, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1870.

Error to Third District Court.

J. F. Hardin, for plaintiff in error.

Sherwood & Buller, and J. & U. Bruneback, for defendant in error.

The grantees and purchasers from the lessor have now in this State the same remedy for possession by unlawful detainer that the lessor might have had. (Wagn. Stat. 648, §§ 36, 37, 40; Gen. Stat. 1865, p. 733, §§ 36-7; Ferguson v. Brook, 27 Mo. 249; Young v. Smith, 28 Mo. 65; Pentz v. Kuester, 41 Mo. 447; Fanning v. Voelker, 40 Mo. 129; Wood v. Dalton, 26 Mo. 581.)

CURRIER, Judge, delivered the opinion of the court.

This is an unlawful detainer suit. On appeal from the judgment of the justice to the Circuit Court, the plaintiff obtained judgment for possession, which was affirmed in the District Court, and the defendant brings the cause here by writ of error. It is objected that improper evidence was admitted in behalf of the plaintiff, and that the court misdirected the jury.

1. The record contains a minute at the foot of the testimony, showing that the defendant objected to all of the plaintiff's evidence, but for what reason, or upon what grounds, does not appear. The objections are therefore not open for re-examination here. (Knipper v. Bechtner, 32 Mo. 255.)

2. The plaintiff gave evidence tending to show that one Thatcher was in possession of the disputed premises in the summer of 1862; that he put the defendant in charge of the property, with liberty to occupy it for his own use, without accountability for rent, until Thatcher should call for it, the duration of the tenancy being left open and indefinite. On the 23d of December, 1865, Thatcher sold and conveyed the premises to one Wells, informing him of the defendant's relation to the property, and Wells subsequently sold and conveyed to the plaintiff, who instituted these proceedings after demand and notice, to-wit: on the 2d day of March, 1868. The defendant's possession was continuous from the summer of 1862, but he paid no rent, and there was evidence tending to show that he recognized Wells as the owner of the property after the latter's purchase from Thatcher.

On this general basis of fact and evidence, the court gave one instruction for the plaintiff and none for the defendant. The instruction given for the plaintiff is complained of as erroneous because it is supposed to submit to the jury the question of title to the premises, and the title, it is insisted, can not be inquired into in this form of action. The instruction does not submit the question of title as between the lessor and lessee, but simply the question whether the plaintiff by proper conveyances had succeeded to the rights and remedies of the lessor--and this was proper. (Gen. Stat. 1865, p. 733, §§ 36, 40; Young v. Smith, 28 Mo. 65; Pentz v. Kuester, 41 Mo. 447.) That the deeds read in evidence conveyed to the plaintiff all of Thatcher's right does not appear to have been a disputed proposition. The instruction is further objected to because it is supposed to base the plaintiff's right of recovery on the admission by the defendant of title in the...