Holliday v. Nolan

• Decision Date: 18 March 1902
• Citation: 67 S.W. 663,93 Mo. App. 403
• Parties: HOLLIDAY et al. v. NOLAN et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Court of Appeals

67 S.W. 663

93 Mo. A. 403

HOLLIDAY et al. v. NOLAN et al.¹

Court of Appeals of St. Louis, Missouri.

March 18, 1902.

LEASE — LIABILITY FOR RENT AND TAXES — EFFECT OF ASSIGNMENT — CLAIM AGAINST ESTATE — EQUITABLE SET-OFF — JURISDICTION — STAY OF JUDGMENT.

1. A lessee's liability to pay, as an original lessee, rent and taxes which neither he nor his co-lessee, nor any one holding under them, had paid, as required by the lease, was not extinguished

by his assignments to his co-lessee; and, whether or not the lease was properly forfeited against a subsequent assignee thereof, he is not entitled to set off against such liability either the rents collected by lessor since the forfeiture, or the value of the unexpired term of the lease so set off.

2. A defense of set-off to a claim against an estate in the probate court, of purely equitable cognizance, could not be litigated in the proceeding on the claim in such court; nor could the judgment in the proceeding be stayed till it could be litigated elsewhere, there being no claim that the claimants were insolvent.

Appeal from St. Louis circuit court; W. C. Douglas, Judge.

Claim by Samuel N. Holliday and others, as trustees, against Phillip J. and John A. Nolan, as executors of William A. Meagher, deceased, for unpaid rent and taxes due under a lease. From a judgment for claimants, defendants appeal. Affirmed.

Hickman P. Rodgers and M. Kinealy, for appellants. S. N. & J. G. Holliday, for respondents.

GOODE, J.

In May, 1880, Gerard B. Allen leased certain premises in the city of St. Louis to Marcus A. Wolff and William A. Meagher, at that time constituting the firm of M. A. Wolff & Co. The lease was for 30 years, at a rental of $700 per annum, plus the payment of all taxes by the lessees. Meagher quitclaimed his interest in the lease to M. A. Wolff in 1884. In 1887 Edward B. Wolff and George P. Wolff took an interest in the business with M. A. Wolff, constituting the M. A. Wolff Real Estate Company. M. A. Wolff afterwards died, and his said two sons continued the business of the firm until 1897, when the former sold out to the latter, who remained on the premises in question, conducting the real estate business, until the lease was forfeited for nonpayment of rent and taxes, to wit, in May, 1899. Meagher died in March, 1900, leaving a will, of which the defendants, Phillip J. Nolan and John A. Nolan, are executors. Gerard B. Allen, the lessor, died in 1887, leaving a will whereby he devised to the plaintiffs, Samuel N. Holliday, George S. Drake, and George L. Allen, as trustees, the premises in question. The aforesaid lease of the said premises provided that any failure to pay the quarterly rent reserved, or any part thereof, when due, or to pay city and state taxes on demand, or any part thereof, within the year the same would become due, or to keep and perform any other of the agreements, covenants, or stipulations in the lease, should create a forfeiture thereof, and a termination of the time for which the premises were let, and that the leased estate should be absolutely void, at the election of the lessor, "at any day or time, however distant, after such failure, by notice in writing to that effect given by said lessor, his heirs, legal representatives, or assigns, to said lessees or their legal representatives, which said notice may be served by delivering a copy or duplicate of such notice to said lessees, or to either of them, or to their legal representatives. But it is further agreed that if the notice of forfeiture be for nonpayment of rent, taxes, or insurance, the said lessees may, by a payment of the same at any time within thirty days after the service of said notice, be reinstated to all their rights," etc., "the same as if no default had been made." After George P. Wolff became the sole occupant of the premises, and sole proprietor of the business of the M. A. Wolff Real Estate Company, he paid the rent promptly to the agent of the trustees of Gerard B. Allen's will, until 1899, when he defaulted in the payment of both the rent and the taxes for 1898 and 1899. The result was that in May, 1899, a written notice was served on him by the trustees under Allen's will, to wit, the plaintiffs, notifying him that on account of his default and breaches in regard to the payment of rent and taxes, and to keep the improvements on the property insured, the said trustees declared a forfeiture of the lease, and of his and every one's else...