Huth's Adm'r v. City of Carondelet

• Decision Date: 31 March 1858
• Citation: Huth's Adm'r v. City of Carondelet, 26 Mo. 466 (Mo. 1858)
• Parties: HUTH'S ADMINISTRATOR, Defendant in Error, v. CITY OF CARONDELET, Plaintiff in Error.
• Court: Missouri Supreme Court

26 Mo. 466

HUTH'S ADMINISTRATOR, Defendant in Error,

v.CITY OF CARONDELET, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1858.

1. Taylor v. Carondelet, 22 Mo. 105, affirmed.

Error to St. Louis Land Court.

This was a proceeding to set aside a forfeiture of a lease executed in favor of plaintiff's intestate, in April, 1846, by the board of trustees of the town of Carondelet. It appears from the finding that Huth (plaintiff's intestate) died in the year 1849; that he paid the rent during his life; that Du Bouffay Fremon, public administrator, took charge of his estate on the 22d day of June, 1850; that he paid to the authorized agent and collector of the board of trustees the rent up to April 4, 1850; that July 10, 1852, the city of Carondelet passed an ordinance annulling said lease for nonpayment of rent reserved which had remained unpaid for more than six months after the same became due; that Fremon was ever ready to pay said rent; that no demand was made, but that Thomas Chartrand, the duly authorized agent of the board of trustees for the collection of the rent accruing on the lease for the year ending April 4th, 1851, agreed with Fremon and promised to call on him and receive the said rent for the said year when the same should become due and payable; that said Chartrand failed to do so, and by reason thereof the said rent was not paid; that in the latter part of the year 1852 said Fremon tendered to defendant all the rent that had then accrued for the years ending April 4, 1851, and April 4, 1852, together with interest to the time of the tender.

The court set aside the forfeiture.

Casselberry, for plaintiff in error.

I. The agent had no power to make the agreement in evidence. There was no authority to extend the time. The city council never knew that he had made any arrangement of the kind until long after the lease had been forfeited.

Whittelsey, for defendant in error.

I. Equity will relieve of forfeiture on the ground of accident. (2 White & Tud. L. C. 464; 3 Ves. 693; T. & R. 434; 1 Hare, 128.) The defendant is but a corporation, and the provisions of its lease, although required by ordinance, are but contracts and covenants of the parties, as between landlord and tenant. (Major v. Bailey, 2 Denio, 443; Grant on Corp. 129.) The rule that equity cannot relieve against a statute does not apply to this case.

RICHARDSON, Judge, delivered the opinion of the court.

The lease in this case was made under the same law and ordinance, and is...