Hillis v. Rhodes

• Decision Date: 20 August 1920
• Citation: Hillis v. Rhodes, 223 S.W. 972, 205 Mo. App. 439 (Mo. App. 1920)
• Parties: GREEN HILLIS, Respondent, v. WILLIAM RHODES, Appellant
• Court: Missouri Court of Appeals

223 S.W. 972

205 Mo.App. 439

GREEN HILLIS, Respondent, v. WILLIAM RHODES, Appellant

Court of Appeals of Missouri, Springfield

August 20, 1920

Appeal from Circuit Court of Wayne County.--Hon. E. M. Dearing Judge.

REVERSED.

Judgment reversed.

W. A Settle and J. B. Daniel for appellant.

(1) The contract of lease pleaded bye respondent, not having been made in writing, and being for the lease of land for more than one year, and for the performance of obligations by both parties thereto which were not to be performed within one year from the making of said contract, was in violation of the Statute of Frauds and void. R. S. 1909, sec. 2783. (2) In actions at law, part performance will not take the contract out of the Statute of Frauds. Aylor v. McInturf, 184 Mo.App. 691, 695; Shacklet v. Cummins, 178 Mo.App 309, 311; Last Chance Mining Co. v. Tuckahoe Mining Co., 202 S.W. 287, 288; Winter v. Spradling, 163 Mo.App. 77, 81 and 82. (3) In order that a contract for the leasing of farm lands for more than one year can be enforced as a tenancy at will or from year to year, it is necessary that the party to such contract seeking to recover under it, prove not only the making of the contract, but also that the tenant thereunder took possession of the premises leased under said contract and by the consent of the lessor. It has never been held that possession of a part of the premises will suffice. Shacklet v. Cummins, 178 Mo.App. 309, 312 and 314; Womach v. Jenkins, 128 Mo.App. 408, 413; Cochran v. Ward, 5 Ind.App. 89, 31 N.E. 581. (4) The fact that respondent is precluded by the Statute of Frauds from recovering in this action does not mean that he is without a remedy for any wrongs he may have suffered. He might have sued in equity for specific performance of the alleged contract or he might have sued for the value of any services performed by him. Shacklet v. Cummins, 178 Mo.App. 309, 314; Aylor v. McInturf, 184 Mo.App. 691, 701; Winter v. Spradling, 163 Mo.App. 77, 83. (5) The market value of the use of the Rhodes farm having been proven, the measure of respondent's damages, if he was entitled to recover, was the difference, if any, between such market value and the rent contracted to be paid. Jenkins v. Womach, 143 Mo.App. 410, 414-415; Hughes et al. v. Hood et al., 50 Mo. 350, 352; Shoemaker v. Crawford, 82 Mo.App. 487, 490. (6) The verdict of the jury was either the result of passion and prejudice or of the argument of counsel for respondent, sanctioned by the court, over the objections and exceptions of appellant to the effect that the measure of damages was what the use of the farm was worth to respondent as distinguished from what it was worth to Mr. Rhodes, over and above the rent contracted to be paid. Estates at will arise only upon actual possession being taken by the tenant. Tiedeman on Real Property (2 Ed.), sec. 212.

V. V. Ing for respondent.

(1) The appellate court will not consider the sufficiency of the evidence on the question of possession or any other controverted point for the reason that appellant has not brought up all the evidence in the case, but has set out in his abstract only what appellant says is the substance of the evidence in the case. Jones v. Jones, 188 Mo.App 220; Zachra v. American Mfg. Co., 179 Mo.App. 683; Epstein v. Hammerslough Clothing Co., 67 Mo.App. 221; Stowell v. Dickson, 177 S.W. 1080; Forsee v. Zanner, 193 S.W. 975. (2) A verbal contract for the renting of a farm or farm lands for farm purposes for a term longer than one year, accompained with the delivery of possession to the tenant, establishes the relation of landlord and tenant under a tenancy from year to year, which can be terminated only by legal notice to quit. Section 7882, R. S. 1909; Womack v. Jenkins, 128 Mo.App. 408; Womack v. Jenkins, 143 Mo.App. 410; Cunningham v. Roush, 157 Mo. 336; Tarlotting v. Bokern, 95 Mo. 541. (3) A verbal lease of farm lands in binding for one year if followed by possession, and, if the lessor, without the fault of the lessee, refuse to perform according to the terms of the lease or to permit the lessee to perform it on his part, the lessee may recover for the breach. Jenkins v. Womack, 143 Mo.App. 410; Same case, 128 Mo.App. 408; Kroeger v. Bohrer, 116 Mo.App. 208; Hosli v. Yokel, 58 Mo.App. 169. (4) The reason for the rule stated in the last above point had its origin in and is based on the principle of protecting tenants at will from being deprived of crops sown, by the arbitrary termination of their estates, or, in other words, from the determination of the courts to uphold the just and equitable policy of allowing a tenant who sows to reap, which principle is in this case. Kroeger v. Bohrer, 116 Mo.App. 280; Womack v. Jenkins, 128 Mo.App. 408; Hosli v. Yokel, 58 Mo.App. 169. (5) Alleged improper remarks or argument of counsel to the jury will not be reviewed or considered by the appellate court on appeal, where the remarks or language used are not preserved in the record. The statement in objection of counsel to the argument of counsel for respondent to the jury that the argument was "to the effect" that under the instructions of the court the measure of damages is the value of the use of the farm to Mr. Hillis as distinguished from the value of the farm to the use of Mr. Rhodes," is merely a conclusion of counsel for appellant. It is the province of the Court to determine what the effect of the words used is, and not of counsel. Lund v. McClinton, 205 S.W. 240; Hill v. Harvey, 201 S.W. 535; Stowell v. Dickson, 177 S.W. 1080; Epstein v. Hammerslough Clothing Co., 67 Mo.App. 221; Forsee v. Zanner, 193 S.W. 975. (6) A case will not be reversed because of an erroneous instruction unless it appears that harmful results followed therefrom. Mathewson v. Larson-Myers Co., 217 S.W. 609. (7) Where the verdict is for the plaintiff, his evidence must be taken as true on appeal. Diehl v. Bestgen, 217 S.W. 555. (8) It devolves on appellant to show the appellate court that the judgment of the lower court had no foundation to rest on, and, if he fails to do so, the action of the lower court is presumed to be correct. Stowell v. Dickson, 177 S.W. 1080. (9) Instruction No. 1, given at plaintiff's instance correctly declares the law and is proper in every way. Womack v. Jenkins, 128 Mo.App. 408; Hosli v. Yokel, 58 Mo.App. 169; Jenkins v. Womack, 143 Mo.App. 410. (10) Instruction 2, given at plaintiff's instance is correct, and will not be reviewed on appeal. Its correctness was not challenged by appellant in his motion for new trial. Morgner v. Kister, 42 Mo. 466; Taylor v. Brotherhood, etc., 106 Mo.App. 212; Street v. School District, 221 Mo. 663; Ordelheide v. Traube, 183 Mo.App. 363. Even if it had been error to give instruction 2 asked by plaintiff, it would not be reversible error, because the evidence shows that the verdict is for the right party, and the jury so found. Swearengen v. Orne, 8 Mo. 707; Moore v. Lindell Ry. Co., 176 Mo. 528. We cite the following authorities on the question of what constitutes possession of lands: Barlett v. Draper, 23 Mo. 407; Bradley v. West, 60 Mo. 59; Miller v. Northrup, 49 Mo. 397; Leeper v. Baker, 68 Mo. 400; Henniger v. Trax, 67 Mo.App. 521; Walser v. Graham, 60 Mo.App. 323; Mereweather v. Howe, 48 Mo.App. 148; Keener v. Schleigler, 70 Mo.App. 409. "Plaintiff need not reside on the land, or actually occupy any building thereon, or even have it inclosed, in order to have actual possession. Robinson v. Ramsey, 190 Mo.App. 206. "If any entry is made with the intention of retaining the permanent possession, and clearing and improving the land, and fitting it for cultivation, it may be sufficient, and authorize the inference that the possession is actual." Bradley v. West, 60 Mo. 59; Keen v. Schweigler, 70 Mo.App. 409; Henniger v. Trax, 67 Mo.App. 521; Walser v. Graham, 60 Mo.App. 323. Proof of a rental contract, where possession or a part of the rental premises is taken into possession thereunder, extends the actual possession of the part to all the land rented. Robinson v. Ramsey, 176 S.W. 282, loc. cit. near bottom of second column on page 283; Hosli v. Yokel, 58 Mo.App. 169, 171. But, to constitute possession of real estate it is not necessary that the party actually have his foot on every acre of the farm, in fact, actual pedis possessio or that any open or visible acts be done on or with every part of the farm. Such a contention is unreasonable, and there is no law justifying it. 19 Cyc. 1130, and cases cited herein above. Plaintiff could not have refused to pay rent to Mr. Rhodes after having taken possession as he did--sowed twenty-nine acres of wheat and stored his hay in the barn and done other acts of possession done by him under the contract by reliance on the statute of frauds, upon which appellant relies, therefore, appellant cannot defeat his liability under the contract. Bless v. Jenkins, 129 Mo. 647. (11) It was perfectly proper to admit testimony as to the nature, location and character of the farm, the number of acres and the character of the soil to aid the jury in determining what was the reasonable value of the use of the farm over and above the rent to be paid by respondent, and the opinion of competent witnesses on that question was also admissible. The jury had a right to both. Hueist v. Marks, 67 Mo.App. 418, and cases cited in paragraph last above. Proof of declarations of appellant that he had rented the farm to respondent for five years, for one-half the crops after Mr. Hillis had entered into possession shows a tenancy from year to year, which cannot be terminated except by legal notice. And appellant admits this rental contract, as testified to by respondent. Cunningham v. Roush, 157 Mo. 336. (12) The court did not err in refusing to give the...