Krall et al. v. Light

• Citation: 210 S.W.2d 739
• Decision Date: 09 February 1948
• Docket Number: No. 20890.,20890.
• Parties: MRS. JOHN A. KRALL, ROBERT S. WITHERS, MRS. A.E. PERKINS, CECIL C. WAY, AND MRS. F.R. HULSE, RESPONDENTS, v. CHARLES C. LIGHT AND HELENE C. LIGHT, APPELLANTS.
• Court: Court of Appeal of Missouri (US)

210 S.W.2d 739

MRS. JOHN A. KRALL, ROBERT S. WITHERS, MRS. A.E. PERKINS, CECIL C. WAY, AND MRS. F.R. HULSE, RESPONDENTS, v. CHARLES C. LIGHT AND HELENE C. LIGHT, APPELLANTS.

No. 20890.

Kansas City Court of Appeals. Missouri.

Opinion delivered February 9, 1948.

Appeal from Circuit Court of Clay County. — Hon. James S. Rooney, Judge.

JUDGMENT AFFIRMED.

George V. Aylward and Ward A. Dorsey for appellants.

W.B. Teasdale, of counsel.

(1) The trial court erred in refusing to give defendants' motion for a directed verdict and finding, filed and presented at the close of plaintiffs' evidence, for the reason that all of the evidence discloses that the plaintiffs failed to prove facts sufficient to constitute a claim against the defendants. Crane v. Berman, 297 S.W. 423; Rockhill Tennis Club v. Volker, 56 S.W. 2d 9, l.c. 15; Prairie Slough Fishing & Hunting Club v. Kessler, 252 Mo. 424, 159 S.W. 1080, l.c. 1083; Ritchie v. State Board of Agriculture, 219 Mo. App. 90; Chapman v. Breeze, 198 S.W. 2d 717. (2) Even though the Urban Heights Community Club had obtained a charter by pro forma decree, which admittedly had not been done, such association would not have been legally authorized to acquire an interest in real estate by a lease or purchase. Rockhill Tennis Club v. Volker, 56 S.W. 2d 9; Prairie Slough Fishing & Hunting Club v. Kessler, 252 Mo. 424, 159 S.W. 1080, l.c. 1083. (3) There is no privity of contract between the plaintiffs and the defendants sufficient to justify the maintenance of this suit by plaintiffs. Drzewiecki v. Stock Daniel Hardware Co., 293 S.W. 441. (4) The evidence discloses that the purported lease was made by John Smiley, as lessor, at a time when he admittedly did not have legal title to said property. Recording lease, executed by a stranger to chain of title, was not constructive notice to purchasers from owners of existence of lease. Drzewiecki v. Stock Daniel Hardware Co., 293 S.W. 441. (5) The purported option for renewal or extension was so indefinite and uncertain that the court could not determine what agreement, if any, had been reached, and is therefore unenforceable. 35 C.J., page 1008, Par. 122; 32 Am. Jur., page 806, Par. 958. (6) The original lease contained no valid covenant for renewal which could run with the land. No terms for renewal were provided for or agreed upon. The original lease did not constitute a contract for renewal nor grant an option to renew for a further term. No method was provided for the determination of terms. The provision for renewal was void under the statute of frauds. Sec. 3354, R.S. Mo., 1939; Crane v. Berman, 297 S.W. 423; 32 Amer. Jur. (958) P. 806; State ex rel. Johnson v. Blair, 174 S.W. 2d 851, l.c. 854. (7) There was no valid consideration for the purported option and renewal clause; therefore, it is void. Davis v. Petty, 147 Mo. 374, l.c. 382; State ex rel. Johnson v. Blair, 174 S.W. 2d 851, l.c. 854; Gillen v. Bayfield, 46 S.W. 2d 571, l.c. 575. (8) Contracts which are optional in respect to one party are strictly construed in favor of the party bound, and against the party in whose favor the option runs. American Press v. City of St. Louis, 284 S.W. 483, l.c. 487; Rutledge & Taylor Coal Co. v. Mermod Jaccard & King Co., 237 S.W. 849; Williston on Contracts, Par. 620. (9) The covenants and conditions of the purported lease, requiring the plaintiffs to keep said premises in good repair and free from filth and danger of fire, and also the condition not to re-rent or sublet said premises by the week, month, or year, were violated. Jenkins v. John Taylor Dry Goods Co., 352 Mo. 660, 179 S.W. 2d 54.

Conn Withers and Francis G. Hale for respondents.

(1) Appellants' application for writ of certiorari "to correct records" should be denied. State ex rel. Manion v. Dawson, 284 Mo. 490 (504); Hardware Co. v. Weeks, 135 Mo. App. 20. (2) The appeal in this cause should be dismissed because not taken from any final judgment, or other appealable order. Thurman v. Smith, 327 Mo. 894 (897-8); Section 131, Code of Civil Procedure; Cartee v. Marler, 192 S.W. 2d 634 (634-5); McPike v. Bank, 193 S.W. 2d 961 (961-2). (3) The lease in question was supported by a valuable consideration and was and is a valid subsisting obligation of the parties thereto, and of their successors and assigns. 30 C.J.S. 516; Lamm v. Stoen, 284 N.W. 465, 121 A.L.R. 627; Redding v. Anderson et al., 72 Ia. 498 (500). (4) Appellants acquired title to the real estate in controversy with both actual and constructive notice of the rights of respondents under said lease. Sec. 3427, R.S. Mo. for 1939. (5) Under the facts in evidence the trial court could not have decreed a forfeiture of the lease in question. Henry v. Bottling Co., (Mo.) 211 S.W. 9; Blank v. Land Co., 174 S.W. 2d 863 (868); Haeffner v. Brick Co., 77 S.W. 2d 122 (125). (6) The evidence clearly shows privity of contract between appellants and respondents and the trial court did not err in so holding. Gill on Missouri Titles (3rd Ed.), Section 332. (7) Provision for renewal of the lease was supported by a valuable consideration and is and was valid and binding on lessor and his successors and assigns. American Press Co. v. St. Louis, 314 Mo. 288 (301).

SPERRY, C.

This is a suit in equity, brought by a group of persons who are described in the petition as "* * * members of Urban Heights Community Club, * * * an unincorporated association, and bring this action in behalf of themselves and all members of said club, as a class." Defendants are the legal owners of a tract of land, 60 × 80 feet, in Clay County, Missouri, upon which plaintiffs and other members of said club erected, and maintain, an adequate but modest building, used as a community club house. In February, 1940, defendants locked said building and posted a notice thereon to the effect that anyone found on said premises would be prosecuted.

The petition is in two counts, and was filed March 21, 1946. In the first count plaintiffs alleged that one Smiley, then the legal owner of said real estate, leased it to the Urban Heights Community Club, by written instrument, for a term beginning September 1, 1921 and ending September 1, 1946, with an option therein for renewal upon payment of the sum of One Dollar; that said lease was duly filed of record in the office of the recorder of deeds long prior to the date of acquisition of ownership of said tract by defendants; that plaintiffs are the present trustees of the Urban Heights Community Club, which has complied with all conditions mentioned in said lease; that they have tendered defendants One Dollar and demanded a renewal of said lease, in accordance with the option contained therein; that defendants have posted a notice on the club building warning every one against coming on the property, have demanded possession thereof, and have refused to grant a renewal of the lease; that defendants, prior to purchase, knew of plaintiff's rights and of their occupancy and possession of the property; and they pray for a determination and declaration of the rights of the parties under said lease, and that defendants be required to execute a renewal of same.

In the second count plaintiffs pray that defendants be restrained from going upon the property and from interfering with plaintiff's use thereof.

The lease was, by reference, made a part of the petition and a copy thereof filed, which is as follows:

" PROPERTY LEASE

THIS INDENTURE, made and entered into this 1st day of September, A.D. 1921, by and between John R. Smiley of the County of Clay and State of Missouri, party of the first part, and the Urban Heights Community Club of the County of Clay, State of Missouri, Party of the second part.

"WITNESSETH:

That said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned to be kept and performed by the said party of the second part, its successors and assigns, has demised and leased to the said party of the second part, the following described real estate lying, being and situate in the County of Clay, and the State of Missouri, to wit:

* * * * * * * * *

"To have and to hold the said above described real estate, with all the privileges and appurtenances thereto belonging (save and except such as are hereinafter specifically reserved by the said party of the first part), unto the said party of the second part, its successors and assigns, for the term of twenty five years beginning on the 1st of September, A.D. 1921 and ending on the 1st day of September A.D. 1946, on the following terms and conditions, to wit:

"The said party of the second part, in consideration of the leasing of the premises aforesaid to it by the said party of the first part aforesaid, does hereby covenant and agree to and with the said party of the first part, his heirs, executors, administrators and assigns, that for the use and rent of said real estate and the appurtenances thereunto belonging for the whole term as above set out it will pay the said Kirkland Realty Company, Agents, or to their order, the sum of One dollar and other valuable considerations, receipt of which is hereby acknowledged.

                            "`Filed March 27th, 1946
                            "`Frank Prewitt, Clerk.'
                

"The said party of the first part makes the following reservations and exceptions, to wit: If at any time during the life of this lease the Urban Heights Community Club should become inactive and cease to operate and function as a Club and cease to be represented by a Board of Trustees as their representatives and managers, then this lease shall become null and void.

"Second parties agree to build and maintain a good, substantial fence around the above described lot and not allow any damage or abuse to adjoining property of the first party, which said reservations and exceptions are agreed to by the said party of the second part.

"Said party of the second part further agrees that neither it nor its legal representatives will...