Gray v. Rogers

• Decision Date: 31 March 1860
• Parties: GRAY, Respondent, v. ROGERS et al., Appellants.
• Court: Missouri Supreme Court

30 Mo. 258

GRAY, Respondent,

v.ROGERS et al., Appellants.

Supreme Court of Missouri.

March Term, 1860.

1. If a landlord sells the leased premises to another, the defendant is not thereby discharged of his obligation to pay rent to the vendor, unless the vendee give him notice that he claims the rent.

Appeal from St. Louis Land Court.

This was an action to recover the rent of certain premises, a portion of a tract of one by forty arpens known as the Lirette arpent. The plaintiff, as assignee of Norman Cutter, claimed rent of said premises from September 10, 1855, to September 10, 1857, during which time, it is alleged, the defendants held said premises as tenants of said Norman Cutter at a yearly rent of two hundred and twenty dollars. The defendants denied their tenancy under said Cutter during said period, and alleged that prior to said September 10, 1855, said Cutter conveyed all his interest in said land to Daniel D. Page and Henry D. Bacon. Evidence was adduced to show that the defendants held possession of said premises as tenant under Norman Cutter, by virtue of a verbal renewal of a former lease executed by said Cutter. The defendants introduced evidence to show that in 1852 and 1854 said Cutter executed two several deeds, duly recorded, conveying his interest in said premises to said Page and Bacon. These deeds were absolute in form, and Cutter testified that the second deed was intended as a mortgage only; that he had an arrangement with said Page and Bacon to the effect that he should collect the rents. It appeared also in evidence that defendants paid rent to plaintiff up to March 10, 1856.

The court refused the following instructions asked by defendants: “1. If the jury find from the evidence that Norman Cutter, the assignor of plaintiff, conveyed all his interest in the premises described in the petition to H. D. Bacon and D. D. Page by deeds duly recorded prior to the 10th of September, 1855, they will find for the defendants, unless they find there is a valid agreement in writing signed by the parties to be charged therewith, that said interest shall be reconveyed to said Cutter. 2. The jury are instructed that the deeds and bond, copies of which have been read in evidence, passed all the title of Norman Cutter to the lands therein described to H. D. Bacon and D. D. Page, subject to the bond read in evidence; and any verbal agreement between the parties can not serve to revest the title in said Cutter so far as third persons are concerned, unless they have full notice of the same. 3. The jury are instructed that the conveyances from Cutter to Page and Bacon are absolute on their face, and operate as an assignment of any lease of said premises executed prior thereto, and that plaintiff can not recover in this action rents which accrued subsequent to such assignment. 4. The jury are instructed that the conveyances from Cutter to Page and Bacon are absolute on their face, and that in this action they can not be proved to be otherwise by parol evidence.”

At the defendants' instance the court gave the following instruction: “If the jury find that N. Cutter, the assignor of plaintiff, sold a portion of his interest in the land described in the petition prior to the 10th of September, 1855, they will find for the plaintiff only such portion of the rent claimed by him as he retained interest in the land; if he retained fifteen twenty-fourths, they will find a verdict for fifteen twenty-fourths of the rent claimed, after deducting six months' rent ending March 10, 1856, proved to have been paid.”

The jury found for plaintiff and assessed his damages at two hundred and ten dollars and thirty-seven cents.

Wickham & Snead for appellants.

I. The deeds to Page and Bacon are absolute on their face. They passed all of Cutter's title, and with it the right to collect rent. (6 Wend. 671; 22 Wend. 121; Taylor, L. & T. 426, § 629.) It is not competent at law to show that a deed absolute on its face is in fact a mortgage in a collateral proceeding. (10 Mo. 484; 6 Hill, 219; 9 Louis. 563; 12 Mass. 375; 15 Mass. 210.) The evidence must be in writing. (1 Johns. Ch. 429.) Defendants had no notice of the fact that the deed was a mortgage. A judgment in favor of plaintiff in this action would be no bar to a suit by Page and Bacon for the rent.

Gray, for respondent.

I. The defendants held the premises as tenants of Cutter during all the time that the rent sued for accrued. Defendants did not disclaim holding under Cutter, nor attorn to Page and Bacon; nor did Page and Bacon ever claim any rent, but authorized Cutter to collect rents. Defendants could not be permitted to disown or...