Krank v. Nichols

• Decision Date: 21 May 1878
• Citation: 6 Mo.App. 72
• Parties: F. W. KRANK, Respondent, v. JOHN NICHOLS ET AL., Appellants.
• Court: Missouri Court of Appeals

6 Mo.App. 72

F. W. KRANK, Respondent,

v.JOHN NICHOLS ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

May 21, 1878.

1. Where a tenant holding under the owner of the fee abandons the premises, and delivers the keys to a holder of a deed of trust on the premises, who advertises and sells under the deed of trust, and, having become the purchaser at the foreclosure sale, takes possession by putting in a tenant of his own, this is an unlawful possession by disseisin; and, after written demand from the original owner, the purchaser under the deed of trust and his tenant are guilty of an unlawful detainer.

2. The abandonment of premises by the tenant is a restoration of the occupancy of the landlord.

3. The question of title cannot be raised when one is in by disseisin.

APPEAL from St. Louis Circuit Court.

Affirmed.

H. N. HART and H. B. WILSON, for appellants, cited McCartney v. Alderson, 45 Mo. 35; Spaulding v. Mayhall, 27 Mo. 377; Reed v. Bell, 26 Mo. 216; Pentz v. Knester, 41 Mo. 447; May v. Luckett, 48 Mo. 472; Higgins v. Turner, 61 Mo. 249; Turner v. Baker, 64 Mo. 245.

GOTTSCHALK, for respondent, cited May v. Luckett, 48 Mo. 474, and 54 Mo. 437.

LEWIS, P. J., delivered the opinion of the court.

This is an action of unlawful detainer. In December, 1873, the plaintiff borrowed $800 of defendant Nichols, for which he executed five several promissory notes, and a deed of trust securing them on the premises in controversy, situate in the city of St. Louis. In October, 1874, plaintiff moved to a farm in the country, leaving the premises in charge of defendant Nichols as his agent, with authority to rent, keep in repair, pay taxes, etc., and to account to plaintiff for any surplus of collections. In 1876, plaintiff requested Nichols to rent or lease the premises to Dr. Robinson. Nichols refused to have any agency in the matter; whereupon plaintiff himself rented and delivered the premises to Robinson, collecting one month's rent in advance, and constituted Joseph Sichenger his agent in charge of the property, in the place of Nichols. Robinson moved out at the expiration of six weeks, and voluntarily delivered the keys to Nichols. Sichenger put up a bill, “For Rent,” on the house, with direction to call upon him for particulars. He asked Nichols for the keys, and was at first told to go to Robinson for them. Upon another application, Nichols told him that he had the keys, and that the house was his property. On June 3, 1876, the property was sold under the deed of trust given by plaintiff to Nichols, and Nichols became the purchaser. On the same day, without the knowledge or consent of the plaintiff, he rented the premises to his co-defendant, and put him in possession.

Upon such a state of facts, it would be strange if there could be found in a judgment for the plaintiff. The rules which control this form of proceeding, and the rights which it was framed to protect, are few and simple; yet they seem to require endless repetition by the courts, with but small hope of diminishing the flow of useless litigation. A fundamental principle is, to all appearance, perpetually lost sight of: it is, that however perfect may be a man's title to real property, however complete his right of entry or his right of possession, he cannot, by taking the law into his own hands, consummate his right while the property is in the peaceable occupancy of another. An intelligent application of this principle should leave little to be discussed in the present case.

When a lawful--that is, a peaceable--occupancy is found to exist, every legal presumption is in its favor. If the presumption of rightfulness is to be removed, it must not be by the strong hand, or by intrusion and dispossession. It must be done, if at all, by evidence before a court of justice, in a proceeding devised by the law for that purpose. The holder of the most absolutely perfect title, who disregards this precept, will be compelled to restore to his disseisee all the advantages of his original position before this can be made the subject of investigation. Forcible entry and detainer and unlawful detainer are the machinery provided by law to...