Holland v. Reed

• Decision Date: 31 July 1848
• Citation: 11 Mo. 605
• Parties: HOLLAND v. REED.
• Court: Missouri Supreme Court

11 Mo. 605

HOLLAND

v.REED.

Supreme Court of Missouri.

July Term, 1848.

ERROR TO LINN CIRCUIT COURT.

STRINGFELLOW, for Plaintiff. The only question in this case is, the right of a vendee of the landlord to maintain this action against the tenant. To sustain this right, reference is made to 2 Marsh. 204; 3 Marsh. 149; 2 Litt. 294; 1 Mon. 127; 2 Dana, 245; 3 Dana, 67; 3 B. Mon. 271.

CLARK, for Defendant. The evidence rejected by the Circuit Court only proved a right in Holland to the possession of the premises, and did not in the least tend to prove that kind of possession in him authorizing this kind of proceeding. In the case of Michau v. Walsh, Adm'r of Wilcox, 6 Mo. R. 346, this position is clearly maintained. See Hatfield v. Wallace, 7 Mo. R. 112; Stone v. Malot, 7 Mo. R. 160; Moore v. Agee, 7 Mo. R. 289; 6 Marsh. 494; 8 Mo. R. 278.

MCBRIDE, J.

This was an action of unlawful detainer, brought by Holland against Reed, before a justice of the peace for Linn county, where he obtained judgment, from which the defendant appealed to the Circuit Court. In the Circuit Court, the plaintiff took a non-suit, with leave to move to set the same aside, which he did, but the court overruled his motion and entered judgment. He excepted to the opinion of the court, and has brought the case to this court by writ of error.

By the bill of exceptions, it appears that one John McClintock rented the premises, to recover which this action was brought, to the defendant, Reed, for the term of one year, ending on the 9th November, 1846. By the terms of the agreement between the parties, Reed was to pay $80 per year for the use of the property, the payments to be made uarterly, and was to be allowed for all necessary repairs done upon the houses, and at the expiration of his term, to restore the possession of the property, in good repair.

On the agreement between the parties is indorsed, on the 28th July, 1846, a credit for the first three quarters' rent, amounting to $60--also the following assignment from McClintock to Holland:--“Nov. 16, 1846. I assign this articls to John Holland and give him full power to collect and receive the last quarter's rent due on it. JOHN MCCLINTOCK.”

The plaintiff then offered to prove by evidence that McClintock was in possession of the premises prior and up to the time of leasing to defendant; that defendant took possession and held under his lease until the termination thereo, that before the end of the defendant's lease, McClintock sold all his right and title in the premises to the plaintiffs, who, after the termination of the defendant's lease and before the institution of this suit, made a demand in writi of the defendant for the possession, who refused to surrender the same to him. The court rejected the evidence.

The question arising on the record is whether the plaintiff, who is the vendee Mentock, can maintain this action against the defendant, who obtained psion of the premises under a lease and as tenant of the said McClintock, the ndor?

This proceeding is had under a statute of this State, entitled “An act concerning forible entries and detainers,” Rev. Code 1845, p. 511, the third section of which provides that “when any person shall willfully and without force hold over any lands, tenements, or other possessions, after the termination of the time for which they were demised or let to him, or the person under whom he claims, or when any person wrongfully and without force, by disseizen, shall obtain and continue in possession of any lands, tenements or other possessions, and after demand made in writing for the deliverance of the possession thereof by the person having the legal right to such possession, his agent or attorney, shall refuse or neglect to quit such possession, such person shall be deemed guilty of an unlawful detainer.” This section is a substantial copy of the third section of the act of 1835 upon the same subject, under which this court held, in the case of Blount & Baker v. Winright, 7 Mo. R. 50, that “the act giving this action for a forcible detainer contemplates a case in which the plaintiff has once been in lawful possession, and in which defendant, or those under whom he claims, have peaceably obtained possession, and hold over after a demand made in writing.” The foregoing view of the subject is further enforced in the case of Hatfield v. Wallace, reported in...