Kelly v. Clancy

• Decision Date: 27 May 1884
• Citation: Kelly v. Clancy, 15 Mo.App. 519 (Mo. App. 1884)
• Parties: BERNARD KELLY, Respondent, v. JAMES B. CLANCY, Appellant.
• Court: Missouri Court of Appeals

15 Mo.App. 519

BERNARD KELLY, Respondent,

v.JAMES B. CLANCY, Appellant.

St. Louis Court of Appeals, Missouri.

May 27, 1884.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Affirmed.

W. C. MARSHALL, for the appellant: The complaint alleges that defendant obtained the possession by disseisin, but it does not allege that the plaintiff ever was in possession of the premises or that defendant disseised the plaintiff, both of which are necessary in this action.-- Hatfield v. Wallace, 7 Mo. 112; Warren v. Ritter, 11 Mo. 354; Spalding v. Mayhall, 27 Mo. 377; McCartney v. Alderson, 45 Mo. 35. The lease from Peck to Kelly did not vest the possession in Kelly. It gave him only a right of possession.-- mechannnn v. Walsh, 6 Mo. 346. Defendant is not estopped in this action from disputing plaintiff's title, for the relation of landlord and tenant never existed between them.-- May v. Luckett, 53 Mo. 437.

C. M. NAPTON, for the respondent: Kelly having leased the house from Peck, landlord, was entitled to bring this suit.--Rev. Stats., sect. 2453; Burns v. Patrick, 27 Mo. 434; L'Hussier v. Zallee, 24 Mo. 13; Warner v. Ritter, 11 Mo. 354; McCartney v. Alderson, 45 Mo. 35; s. c. 49 Mo. 456. Possession of part of the premises, with a claim on the whole, is enough to entitle plaintiff to maintain the action.-- Bartlett v. Draper, 23 Mo. 407; Hardesty v. Glenn, 32 Ill. 62; 32 Ill. 417; 28 Ill. 387. Or the legal possession of lessor after expiration of the lease, is sufficient.-- Warren v. Ritter, 11 Mo. 354; Taylor's L. & T., sect. 790, notes, and 789.

L. J. SMITH, for the respondent.

THOMPSON,, J. delivered the opinion of the court.

This was an action of forcible entry and detainer. On trial anew in the circuit court the plaintiff had a judgment.

The complaint is in the following language: “Bernard Kelly states that on the 1st day of March, 1882, he had the legal right to the possession of a certain two-story brick building, together with the room adjoining in the rear, and room adjoining on the east side of said two-story building, situated on the northeast corner of Poplar and Fourteenth Streets, in block No. 215 W., in the city of St. Louis, and in the Seventeenth Ward thereof, and state of Missouri, and that James B. Clancy, on the day and year aforesaid, wrongfully and without force by disseisin, obtained and continues in possession of said premises, after demand made in writing for the delivery of the possession thereof. Plaintiff further states that he sustained damages by reason of the unlawful detainer aforesaid, in the sum of $100, and that the value of the monthly rents and profits of said tenement are $60. Wherefore the complainant prays judgment of restitution, and for his damages, and the value of the rents and profits of the premises aforesaid.”

I. At the commencement of the trial, the defendant objected to the introduction of any evidence in the case, on the ground that the complaint did not state facts sufficient to constitute a cause of action against the defendant. This objection was overruled, and the exception to this ruling presents the first question which we have to consider. The ground of objection to the complaint is, that it alleges that the defendant obtained possession by disseisin, but it does not allege that the plaintiff ever was in possession of the premises, or that the defendant disseised the plaintiff; and a number of old cases have been cited to sustain this proposition. This was the law prior to our revision of 1855. Blount v. Winwright, 7 Mo. 50; Hatfield v. Wallace, 7 Mo. 112; Warren v. Ritter, 11 Mo. 354; Holland v. Reed, 11 Mo. 605; Picot v. Masterson, 12 Mo. 303; Holliday v. Doyon, 15 Mo. 407. Formerly, where the person having the legal right to possession had never himself been in possession, he could not, it seems, maintain an action of forcible entry and detainer, or of unlawful detainer, but was put to his ejectment. L'Hussier v. Zallee, 24 Mo. 13, 14; McCartney v. Alderson, 45 Mo. 35, 38. But the legislature, in 1855, in enacting the revision of 1855, changed this rule by inserting the following two sections: “Heirs, devisees, grantees, and assigns of any lands, tenements, or other real possessions, shall be entitled to the same remedies againt persons who were guilty of forcible entry and detainer, or unlawful detainer of such lands, tenements, or other real possessions, before the descent, devise, grant, or assignment thereof, as the ancestor, devisor, grantor, or assignor, was entitled to by virtue of this act.” Rev. Stats. 1855, p. 794, sect. 36.

“If any lessor of any lands, tenements, or other real possessions, shall die or shall grant or assign such land or tenements or other real possessions, before the expiration of the term for which they were demised or let, his heirs, devisees, grantees, or assigns, shall have the same remedies against any person guilty of an unlawful detainer, by holding over such lands, tenements, or other real possessions, after the term for which they were demised or let, as such lessor would have had if he had not died, or had not granted or assigned said lands, tenements, or other real possessions.” Ibid., sect. 37. These provisions were retained in the revision of 1865 (Gen. Stats. 1865, p. 733, sects. 36, 37), and have passed without substantial change into the Revised Statutes of 1879. Rev. Stats. 1879, sects. 2453, 2454. The rule both before and since the statute has always been that no one could maintain an action except the party having the lawful right of possession, and the third section of the statute gives the action to such person in terms. Rev. Stats., sect. 2420. Accordingly, it was held before the statute, that where the owner of premises in possession of A leased them to B, the owner could not thereafter maintain unlawful detainer; the right of action went to his lessee; and as the statute did not allow him to maintain unlawful detainer, because he had never been in possession, he must bring ejectment. L'Hussier v. Zallee, 24 Mo. 13.

That is precisely where the argument of the learned counsel for the defendant, overlooking the statute of 1855, would land this case; for the facts of this case, without contradiction were as follows: That on the 23d of February, 1881, this plaintiff was carrying on the saloon business in the premises in question, renting the whole tenement from Mr. Peck, and living in the upper rooms with his family. He could not read and write, and he wanted some one with him in the business who could; he, therefore, took the defendant into the business with him for one year. This partnership expired on the 22d day of February, 1882. Before the arrival of this date, the plaintiff and the defendant had a disagreement, and on that day the defendant turned the plaintiff out of the saloon, barred him out, and notified him in writing that the partnership was dissolved, and thereafter kept him out of the saloon, retaining in possession the saloon fixtures, and carrying on the business for himself exclusively--the plaintiff, in the meantime, continuing to reside in the upper rooms with his family. The plaintiff, desiring to carry on the business alone at the same place, as he had previously done, went to the agent of Peck and obtained a lease of the premises, beginning on the 1st of March, 1882, the date of the expiry of the lease under which he and the defendant had held, as he might lawfully do. This entitled him to possession on the 1st of March, 1882, to the exclusion of the defendant. If the defendant's contention is correct, Peck could not maintain this action against the defendant, because he had parted with his right of action by making the lease to the plaintiff, and the plaintiff could not maintain it, because he had never been in possession. It would follow that no one could maintain it; but that this plaintiff would be driven to an action of ejectment. The cases show that it was to remedy just such inconveniences as this, and to eliminate such an incongruity from our law, that the two sections above quoted were enacted. McCartney v. Alderson, 45 Mo. 35; Gillett v. Mathews, Id. 307; Young v. Smith, 28 Mo. 65; Pentz v. Kuester, 41 Mo. 447; Kaulleen v. Tillman, 69 Mo. 510. It is not claimed on behalf of the the defendant, that this plaintiff is not a “grantee” or ““assign” of a real possession, within the meaning of section 2453 of the Revised Statutes. Indeed, the defendant's argument makes no allusion to this statute at all. There is no doubt whatever, that the plaintiff is a “grantee” or “assign” of a “real possession,” within the meaning of the statute. The legislature, out of abundant caution, and for the purpose of making its meaning more clear, added to the sections, which we have above quoted, the following: “Executors or administrators of a decedent, holding a chattel interest in lands, tenements, or other real possessions, shall have the same remedies as are hereby granted to heirs, devisees, grantees, or assignees.” Rev. Stats., sect. 2455. A similar provision is found in our statute relating to administration. Ibid., sect. 129. Before this statute, an executor or administrator could maintain ejectment for a chattel interest in lands, which included a lease for a term of years; though he could not for a freehold, for that descended to the heirs, and the executor or administrator had nothing to do with it. Burdyne v. Mackey, 7 Mo. 374. This statute enables him to maintain forcible entry and detainer, or unlawful detainer, where formerly he was obliged to bring ejectment. Lass v. Eisleben, 50 Mo. 122.

The statute we are here considering (Rev. Stats., sects. 2453, 2454) must be construed in pari materia with the other provisions of the forcible entry and detainer act, into which it was originally introduced as an amendment. This act does not relate to or concern itself with the title to property, but only relates to the right of possession. Its third section, as already stated, confers the right of...