Glascock v. Robards

• Decision Date: 31 March 1851
• Citation: 14 Mo. 350
• Parties: STEPHEN GLASCOCK v. A. S. ROBARDS.
• Court: Missouri Supreme Court

14 Mo. 350

STEPHEN GLASCOCK

v.A. S. ROBARDS.

Supreme Court of Missouri.

March Term, 1851.

ERROR TO MARION CIRCUIT COURT.

PRATT & REDD, for Plaintiff.

I. That a vendee, who goes into possession under a contract of purchase, is not entitled to notice to quit. In Smith v. Stewart, 6 Johns. R. 48, the court say, “that where a defendant comes into possession under a contract for a deed, the better opinion is, that he never was strictly a tenant, and never entitled to notice to quit.” “He is liable to be turned out as a trespasser, and responsible in that character for mesne profits.” In Jackson v. Miller, 7 Cowen, 752, the defendant went into possession under a contract to purchase at $500 per acre. Chief-Justice Savage, after an extensive review of the authorities, decides that the defendant is not entitled to notice to quit, and concludes his argument in the following words; “It seems reasonable that notice to quit should be given in all cases where the tenant occupies with the consent of the landlord, and does not act hostile to him. But the case of a contract to sell, seems unfortunately to have been considered an exception. No notice was necessary therefore, and the plaintiff is entitled to judgment.” In Jackson v. Moncrief, 5 Wend. 29, possession was obtained by the defendant, under an agreement to convey. Court say: “Notice to quit was not necessary. The defendant was quasi tenant at will, but, as between vendor and vendee, no notice to quit is necessary,” and the court refers to and sanctions the case of Jackson v. Miller, 7 Cowen, 752. The broad rule in Wright v. Beard, as laid down by Lord Ellenborough, “that where the lessor had put the defendant into possession, he could not bring his ejectment until he had demanded the possession, and the defendant had refused, or done some wrongful act to determine his possession,” has been overruled, or, at least very much circumscribed in its operation by the above cases; and in Kentucky, by the case of Haley v. Hickman's Heirs, Littell's Select Cases, 266, 268. James Hickman put his son-in-law, Hill, into possession, who occupied the same until the defendant married his daughter, when Hill put defendant into possession of the part of the promises sued for. Both Hill and defendant continued to occupy, with the consent of Hickman until his death, when plaintiffs, as heirs at law, brought the suit. Held by the court: “We think the case is not of a character to require notice. A notice to quit is only necessary where the relation of landlord and tenant, or, in other words, lessor and lessee, subsists, and the lease is to expire at an uncertain time.”

II. Holding the rule to be in accordance with the doctrine in Wright v. Beard, the vendee coming into possession lawfully, and holding at the will of the vendor, is entitled to notice or demand by reason of the relation subsisting between them; there being a privity both of contract and estate. Yet we hold that the case of a defendant, claiming under the original vendee, comes within the scope of a well settled exception to such rule--there being no privity, and the relation of landlord and tenant not subsisting between him and the vendor. In Jackson v. Deyr, 3 Johns. 421-22, Thomas L. Whitbeck sold the premises to Christiana and Edw. Goes, and covenanted to convey in consideration of £20, which was paid. C. & E. Goes sold and conveyed to Punlus Kane, who sold and conveyed to the defendant, T. L. Whitbeck; the vendor died, and his father, as his heir-at-law, brought ejectment. Defendant contended, that having the beneficial interest, and being lawfully in possession, he was eutitled to notice. Held, “there is no tenancy whatever. It never has been decided that a notice to quit was necessary unless the relation of landlord and tenant existed. A mortgagor is quasi tenant at will, but here there is no semblance of any such relation. We might as well require a previous notice to quit in every case. Judgment for the plaintiffs.” In Jackson on demise of Stewart v. Kingsly, 17 Johns. R. 159. Stewart, the plaintiff, leased the premises from Romayne forever, receiving a rent of $15 00 per annum. Stewart sold to Benton for $750 00, Benton agreeing to pay the rent to Romayne. The defendant came into possession under Benton. Held, by Spencer, J., “The relation of landlord and tenant does not exist. The contracts between plaintiff, Stewart, and Benton was an agreement to sell, and in such a case, notice to quit is not necessary.” In Jackson v. Hopkins, 18 Johns. 488, ejectment by mortgagee against mortgagor. Held, by Spencer, J., “As between mortgagor and mortgagee, the former is regarded as a tenant at will by implication, and is entitled to notice to quit.” “But when the mortgagor sells the mortgaged premises absolutely, the purchaser from him is not entitled to notice to quit, because the sale itself is an act of disloyalty.”

In a court of law, where the equities of the parties cannot govern the decision, the only interest that a mortgagor or vendee has in the land, is, an estate at will. And the distinction made by these authorities appears to be founded on the well known rule, that when a tenant sell a higher estate than he has in the premises, he forfeits the tenancy; as, when a tenant under a demise for ten years, undertakes to sell the freehold, he forfeits, by that act, his term, and the landlord may bring his ejectment immediately, without any demand or notice. In Jackson v. Stackhouse, 1 Cowen, 124, ejectment by the mortgagee against a defendant in possession, under a contract to purchase of the mortgagor. Held, by Justice Woodworth, “The defendant was not entitled to notice to quit, there was no privity either of contract or estate between the defendant and the plaintiff; the relation of landlord and tenant did not exist between him and the mortgagee.”

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