Hicks v. Martin

• Decision Date: 11 April 1887
• Parties: JOSIAH HICKS, Appellant, v. ROBERT B. MARTIN ET AL., Respondents.
• Court: Kansas Court of Appeals

25 Mo.App. 359

JOSIAH HICKS, Appellant, v. ROBERT B. MARTIN ET AL., Respondents.

Court of Appeals of Missouri, Kansas City.

April 11, 1887

APPEAL from Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.

Reversed and remanded.

Statement of case by the court.

This action originated in a justice's court. It was a proceeding by attachment under the landlord and tenant's act. The affidavit, among other things, alleged, as the grounds of the attachment, that there was due and owing the plaintiff, the sum of $87.50 as rent money on certain premises let by him to the defendant, Martin; and it was sought to bind the other defendants, Tanner and Adams, for this rent, on the ground that they had taken a part of the same premises under Martin as tenants. On the trial before the justice, as on appeal in the circuit court, the defendant, Martin, made no defence. The whole controversy is as to the liability of the other defendants, the sub-tenants. The issues on the trial of the plea in abatement in the justice's court were found for the plaintiff. The defendants took no appeal from this judgment.

On the trial of the merits the issue was found for the defendants. Plaintiff appealed from this last judgment.

In the circuit court, over the objection of the plaintiff, the court ruled that the issue on the plea in abatement, as well as on the merits, was for trial de novo; and re-tried the issue under said plea in abatement. The court, sitting as a jury, found that issue against the plaintiff. Plaintiff excepted, moved for a new trial, and, on that being overruled, appealed therefrom. The court also found the issue for defendant on the merits. From this judgment, plaintiff also appealed.

The only difference between the two contracts of lease is, that the one from plaintiff to Martin was for forty-five acres of land, and it provided that so much of the land, a given quantity, as should be cultivated in corn, should be paid for in money, to-wit: the sum of one hundred and twenty-five dollars, on or before the first day of September of that year. The contract of lease from Martin to Tanner and Adams was for only thirty-five acres of the land, and the rental for the corn land was to be paid by a certain share of the crop, to be cribbed on the premises of plaintiff. Both leases contained a provision that " without further notice or form or process of the law the party of the first part (the lessor) shall have full and complete possession at the end of the term."

SAMUEL P. SPARKS, for the appellant.

I. The defendants having failed to appeal from the verdict and judgment in the justice's court sustaining the attachment, it was error in the circuit court to award a trial, de novo, on the plea in abatement; there is no provision of law authorizing it. 1 Rev. Stat., sect. 439. There had been no trial of the attachment, nor verdict and judgment of the justice unappealed from in the case of Phillips v. Bliss (32 Mo. 427). The provision of law regulating attachments in courts of record apply and govern in cases before justices of the peace. 1 Rev. Stat., sect 481.

II. The court erred in refusing the declaration of law asked by appellant, to the effect that a landlord can maintain an action by attachment against the tenants for rents when due and unpaid for; this point has been expressly ruled by this court. Chamberlain v. Heard, 22 Mo.App. 416; Hubbard v. Moss, 65 Mo. 647; Crawford v Coil, 69 Mo. 588. It follows, therefore, that the finding and judgment of the circuit court, sustaining the plea in abatement and dismissing the attachment must be reversed, for the evidence that the rent was due and unpaid was uncontradicted.

III. The court erred in admitting oral testimony, which tended to vary, explain, or contradict the terms of the contracts of leases read in evidence. Johnson County v. Wood Adm'r, 84 Mo. 489.

IV. The leases read in evidence were the only competent evidence of the several contracts between the parties, and the admission of the oral testimony to vary, contradict, or explain them was erroneous, since there was nothing ambiguous in their terms. Johnson County v. Wood, 84 Mo. 489; Koehring v. Muemminghoff, 61 Mo. 403; Willi v. Dryden, 52 Mo. 319.

V. The defendants, Tanner and Adams, as under tenants, were liable as such to Hicks to pay him the rent reserved in his lease to Martin, and of the kind and at the times mentioned in the lease, notwithstanding a different kind of rent was reserved in the lease from the original tenant, Martin, to them as his sub-tenant. 1 Rev. Stat., 1879, sect. 3095, p. 519; Smith v. Brinker, 17 Mo. 148; Willi v. Dryden, 52 Mo. 318. It follows that the refusal of the court to declare the law, as requested, embodying the foregoing propositions, was erroneous.

VI. The uncontradicted evidence shows that Tanner and Adams entered into possession of the premises under the lease, used, cultivated, and occupied same, and by reason thereof they became liable alike with their lessor, Martin, for the rent he had covenanted to pay plaintiff, Hicks. Rev. Stat. 1879, sect. 3035, supra; McKee v. Angelrodt, 16 Mo. 283.

VII. The landlord, Hicks, was entitled to a lien on all the crops grown on the demised premises, whether raised by Martin or the under tenants, Tanner and Adams, and this lien would attach to the money, the proceeds of the sale of the crop in the hands of the court. 1 Rev. Stat., sect. 3083, p. 516; Haseltine v. Ausherman, 87 Mo. 410.

A. B. LOGAN, for the respondents.

I. The appeal by plaintiff brought the entire case up to the circuit court, there to be tried de novo, without regarding any errors, defect or other imperfection, in the summons, or on the trial judgment, or other proceedings, of the justice. Rev. Stat., sect. 3052; Phillips v. Bliss, 32 Mo. 427; Compton v. Parsons, 76 Mo. 455; Moore v. Hutchinson, 69 Mo. 429. Section 439, Revised Statutes, cited by appellant, was not intended to apply to proceedings before justices. In order to comply with this section, defendant must file his bill of exceptions, as upon any other proceeding.

II. The court having found that there was no rent due from Tanner and Adams, there was no injustice done appellant by refusing the instruction complained of, for there was nothing to predicate it upon.

III. The oral testimony heard by the court did not tend to vary, explain or contradict the terms of any written lease read in evidence; but appellant cannot complain in this court, for this point was not saved in his motion for a new trial. The record shows that the appellant plaintiff here, at the conclusion of the evidence on the plea in abatement, voluntarily appeared and went into trial of the cause upon its merits, and did not even file his motion for a new trial on the plea in abatement, until after the cause had been heard upon its merits. Having done this, he cannot maintain his appeal here, and it should be dismissed upon the plea in abatement. The oral testimony offered in the case was not for the purpose, nor did it tend to vary or contradict the terms of the lease. There was no written undertaking between plaintiff, Hicks, and defendants, Tanner and Adams.

IV. Section 3095, Revised Statutes, relied upon by appellant, does not sustain his position, nor do the cases of Smith v. Brinker (17 Mo. 148) and Willi v. Dryden (52 Mo. 319). It cannot be contended that this section either endangers, increases or diminishes the liability of a sub-tenant; it only gives a remedy to the landlord against the sub-tenant, where he would not have one, but for this statute. There was no privity of contract between the landlord and sub-tenant, but this section removes that difficulty and provides, in effect, that the landlord may have the same remedy against the sub-tenant that he could have against the original tenant.

V. It is a familiar doctrine of the law " that, if a person having a right to an estate encourages a purchaser to purchase from another, the purchaser shall hold it against the person who has the right." Huntsucker v. Clark, 12 Mo. side p. 334. Applying this doctrine to this case, the finding of the court below on this point was correct. And this is the only question in the case. If this point be found in favor of appellant, then the case should be remanded; but, if found in favor of respondents, it should be affirmed; even if any other error was committed, it could not prejudice the substantial rights of appellant.

VI. The only remaining point submitted by appellant is, that he is entitled to a lien upon the money derived from the sale of the property attached. Here there was no attempt to remove the crops from the leased premises. This lien cannot be enforced by attachment, unless some of the grounds provided for by section 3091, Revised Statutes, exist and are proved, and we contend that plaintiff wholly failed to establish the existence of any of them. Again: Plaintiff does not pray for a lien in his petition, and he cannot now demand what he did not ask for in his petition.

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