Hughes v. Carson

• Decision Date: 20 December 1886
• Citation: 90 Mo. 399,2 S.W. 441
• Parties: HUGHES and others v. CARSON.
• Court: Missouri Supreme Court

2 S.W. 441

90 Mo. 399

HUGHES and others v. CARSON.

Supreme Court of Missouri.

December 20, 1886.

EJECTMENT — RENTS AND MESNE PROFITS — ACTION FOR, AGAINST LANDLORD — PLEADING — REV. ST. Mo. 1879, § 2252.

An action will lie against a landlord for rents and mesne profits, after judgment in ejectment against his tenant and recovery of possession, where the judgment included such rents and profits, and where the tenant was the only party defendant to the ejectment, and is insolvent, notwithstanding the provision of Rev. St. Mo. 1879, § 2252; and it is not necessary, to maintain such an action, that the petition should allege that the landlord was in receipt of the rents, etc., where it is averred that he aided and abetted the tenant in his resistance to the recovery of the premises in ejectment.

Appeal from circuit court, Montgomery county.

T. H. Musick, for respondents, Hughes and others. Macfarlane & Trimble, for appellant, Carson.

SHERWOOD, J.

The question presented by this record is whether an action will lie against a landlord for mesne rents and profits, after judgment in ejectment against his tenant, and recovery of possession, where the judgment included a recovery for such rents and profits, and where the tenant was the only party defendant to the ejectment, and is insolvent; the point presented being raised by a motion in arrest of judgment denying the sufficiency of the petition on which the judgment for such rents and profits was based. And this is the only point for determination.

The petition in substance alleges that the plaintiffs sued the tenant in ejectment, demanding judgment for possession, damages, rents, and profits; that defendant was not a party to the action, but that he resisted said suit by employing and paying counsel, and otherwise managing and controlling the defense thereof; that the tenant is insolvent; and that plaintiffs have recovered possession of the premises by virtue of their judgment in ejectment. At common law such an action would lie against the landlord in fact who was in receipt of the rents and profits, or who resisted the recovery in the ejectment suit, although he was not a party to that suit. Woodf. Landl. & Ten. 710; Chirac v. Reinicker, 11 Wheat. 280; Tyler, Ejectm. 841.

In this case it does not appear from the petition that the defendant landlord was in receipt of the rents, etc.; but this, from the authorities cited, does not appear to be essential if the other circumstances appear showing that...