Heman v. Wade

• Decision Date: 07 December 1897
• Citation: Heman v. Wade, 141 Mo. 598, 43 S.W. 162 (Mo. 1897)
• Parties: Heman et al. v. Wade et al., Appellants. [*]
• Court: Missouri Supreme Court

43 S.W. 162

141 Mo. 598

Heman et al. v. Wade et al., Appellants. ^[*]

Supreme Court of Missouri, First Division

December 7, 1897

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Transferred to St. Louis court of appeals.

Alfred Gfeller for appellants.

T. J Rowe for respondents.

OPINION

Macfarlane, J.

At the time this suit was commenced there was a suit in ejectment pending in the circuit court of the city of St. Louis, in which plaintiffs herein were seeking to recover from defendants herein the possession of certain lots in said city of St. Louis.

In the action now before us plaintiff undertook by injunction to restrain the defendants from the commission of waste on the premises pending the ejectment suit. A temporary injunction was granted which was made final on the hearing. From the judgment defendants appealed, and the record was sent to the St. Louis Court of Appeals. That court having doubt of its jurisdiction, transferred the cause to this court for final hearing and determination.

Judge Biggs, of the court of appeals, makes the following statement, which we adopt:

"Our jurisdiction is denied on the grounds that more than $ 2,500 is involved, and that the title to real estate is involved within the meaning of the constitutional amendment fixing and limiting the jurisdiction of this court. The plaintiffs claim title to and the right to the immediate possession of the lots by virtue of a deed executed by the Hydraulic Press Brick Company to them, dated April 16, 1894. The deed was the consummation of a previous contract of sale entered into between the Hydraulic Press Brick Company and one Patrick H Clark. The latter assigned the contract of sale to the plaintiffs. The defendants claim under a lease executed by the brick company. This lease was executed on March 23, 1894 and by its terms the lots in question were leased to the defendants for three years from that date at an annual rental of $ 900. The outstanding contract with Clark was mentioned in the lease and the defendants agreed that if Clark or his assignee should establish his right to the property under the contract or should consummate the sale, they would surrender the possession. The lease gave the defendants the right, under certain restrictions, to quarry the rock on the premises. After the plaintiffs received their deed they demanded the possession of the property and the defendants refused to surrender it. Thereupon the plaintiffs instituted the action of ejectment and also an action of unlawful detainer, both of which are still pending. The defendants continued to quarry the rock and at the time this suit was instituted had taken out twenty-two hundred cubic yards. The defense to the present proceeding is that at the time the lease was executed the contract of sale made with Clark was considered by the Hydraulic Press Brick Company as forfeited, and that it was in fact by its terms forfeited prior to that time, and that the extent of the defendants' covenant in the lease was that they would surrender the possession upon condition only that Clark should establish in the courts his right to have the contract performed, which...