Lemp Hunting & Fishing Club v. Cottle

• Decision Date: 08 April 1913
• Citation: 172 Mo. App. 574,156 S.W. 799
• Parties: LEMP HUNTING & FISHING CLUB v. COTTLE et al.
• Court: Missouri Court of Appeals

156 S.W. 799

172 Mo. A. 574

LEMP HUNTING & FISHING CLUB v. COTTLE et al.

St. Louis Court of Appeals. Missouri.

April 8, 1913.

Rehearing Denied May 20, 1913.

1. CORPORATIONS (§ 388) — ULTRA VIRES — ESTOPPEL.

Ultra vires was not available as a defense to a suit by a corporation for specific performance of an agreement in a lease to renew, where the original lease had been fully performed and the rent received and retained by the lessors.

2. SPECIFIC PERFORMANCE (§ 16) — DEFENSES — ENFORCEMENT INEQUITABLE OR INVOLVING HARDSHIP.

Where a lessee for hunting and fishing purposes, although it took an absolute lease, had merely exercised its hunting and fishing rights and had not interfered with the use and cultivation of the land by the lessors, specific performance of a covenant to renew would not be denied as inequitable.

3. SPECIFIC PERFORMANCE (§ 22) — PERSONS AS AGAINST WHOM PERFORMANCE MAY BE ENFORCED.

A purchaser of land, who acquired it with notice of a lease and received rents and profits thereunder and acquiesced therein, would be compelled to specifically perform an agreement in the lease to renew.

Appeal from Circuit Court, Lincoln County; James D. Barnett, Judge.

Action by the Lemp Hunting & Fishing Club against Lord B. Cottle and others. From a judgment dismissing the bill, plaintiff appeals. Reversed and remanded, with directions.

Wm. A. Dudley, of Troy, and Eugene Buder, of St. Louis, for appellant. Chas. Martin and R. L. Sutton, both of Troy, for respondents.

ALLEN, J.

The issues in this case are substantially the same as in the companion case of Lemp Hunting & Fishing Club v. Hackmann et al., 156 S. W. 791, decided at this term. The suit is in equity for specific performance of a like covenant of renewal contained in a lease of substantially the same character as that in the case just referred to, and covering lands in the same vicinity. The land on May 1, 1900, was owned by defendant Cottle and one John W. Pollard. The lease was executed to plaintiff as of said date by the defendant Cottle and Mary Cottle, his wife, and said John W. Pollard, and his wife, Jennie Pollard, the rental reserved therein being $75 per year, and was duly recorded on June 18, 1900. On or about August 19, 1902, the defendant William L. Pollard acquired a portion of the land covered by the lease, by warranty deed from defendant Cottle and John W. Pollard and their wives. In January, 1903, John W. Pollard died intestate, leaving surviving him defendants Jennie Pollard, his wife, George M. Pollard, Robert E. Pollard, Ray H. Pollard, Mary Lee Pollard, and Thelma Pollard, his children. Letters of administration were taken out on his estate, and defendant Jennie Pollard, the widow, duly elected to take a child's share thereof.

The action is against the surviving lessor, Lord B. Cottle, William L. Pollard, the purchaser of a portion of the land, and Laura H. Pollard, his wife, and the above-named heirs of the deceased lessor, John W. Pollard, together with Eula Pollard, wife of defendant George M. Pollard, one of said heirs. The petition is in substantially the same form as in the companion case above referred to, except that it sets up the facts respecting the acquisition of a portion of the property by defendant William L. Pollard, and avers that the plaintiff has no way of determining how the rent should be apportioned as between this defendant and the defendants owning the portion of the property not acquired by him. The petition avers the payment into court of $75 as rent for the first year of the renewal term of the lease, to be apportioned among the parties defendant as the court may decree, asking that the owners of the respective portions of the premises be compelled to interplead and establish their respective interests in said rental.

One answer is filed by all of the defendants, except William L. Pollard, his wife, Laura Pollard, and Thelma Pollard. The answer of these defendants sets up facts alleged to constitute fraud perpetrated by plaintiff upon the lessors John W. Pollard and Lord B. Cottle in obtaining the lease of May 1, 1900, averring that said lessors had executed a prior lease to plaintiff in 1897, granting to it hunting and fishing privileges on a portion of the land in question, known as Brown's Lake, for a period of ten years; that the lease of May 1, 1900, as procured by plaintiff's agents...