Levy v. McClintock

• Decision Date: 24 January 1910
• Parties: LEVY v. McCLINTOCK.
• Court: Missouri Court of Appeals

125 S.W. 546

141 Mo. App. 593

LEVY v. McCLINTOCK.

Kansas City Court of Appeals. Missouri.

January 24, 1910.

On Motion for Rehearing, February 21, 1910.

1. LANDLORD AND TENANT (§ 278)—REENTRY BY LANDLORD—REMEDIES OF TENANT— TRESPASS.

Trespass quare clausum fregit will not lie by a tenant for re-entry by the landlord and ouster, after the expiration of the term, the only injury being to the freehold, to which the tenant then has no right of possession; his only remedy being under the statutes for forcible entry and detainer.

2. LANDLORD AND TENANT (§ 278)—OUSTER— REMEDIES OF TENANT.

While trespass quare clausum fregit will not lie by the tenant after entry by the landlord after the expiration of the term, an action will lie for trespass to the person or personal property of the tenant by the landlord in regaining possession.

On Motion for Rehearing.

3. APPEAL AND ERROR (§ 774)—BRIEFS — POINTS NOT RAISED.

The only issue argued by plaintiff's appeal brief was upon defendant's contention that, where a tenancy was terminated and the tenant held over, he could not maintain trespass quare clausum fregit against the landlord, but did not claim that the tenancy in question had not terminated when the action of quare clausum fregit was brought against defendant as landlord. Held proper to assume that defendant had terminated the tenancy when the action was brought.

4. LANDLORD AND TENANT (§ 292)—EVICTION OF SUBLESSEE—ADMISSION BY PRINCIPAL TENANT — SETTLEMENT OF JUDICIAL PROCEEDINGS.

The one under whom plaintiff occupied defendant's premises paid defendant a monthly rental up to a certain month, when, on his default, defendant began an action against the principal tenant for rent and possession, and obtained judgment, and the tenant appealed, and thereafter defendant began an action of unlawful detainer against the tenant on the ground that the tenancy was terminated, and recovered judgment, from which the tenant also appealed, and both suits were afterwards settled by the tenant vacating and paying rent up to the time of vacating, as well as the costs in both suits and defendant's attorney's fees therein. Held, that the facts showed an acknowledgment by the tenant that the tenancy had expired and that defendant properly instituted such actions, and evidence thereof was properly admitted in trespass quare clausum fregit by plaintiff against defendant for his ouster, and was not objectionable on the ground that it showed a compromise.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Sam Levy against Robert McClintock. From a judgment for plaintiff, defendants appeals. Reversed.

Daniel B. Holmes and Henry C. Page, for appellant. Noyes & Heath, for respondent.

ELLISON, J.

Plaintiff's action is trespass, in which he recovered judgment in the trial court.

Defendant conducted a restaurant on the ground floor at the corner of Twelfth and Walnut streets, in Kansas City, and he rented the second floor to one Isaac Levy, who, with defendant's consent, permitted plaintiff (who was his son) to occupy the premises and operate a billiard hall. The entrance to the premises was by a stairway off of Twelfth street through a hall or passageway. For the purposes of the case we will, in plaintiff's interest, consider him as defendant's tenant. It is alleged in the petition that plaintiff had the right to, and did, put a sign at the foot of the stairway, and that he had the right to have gas conducted to the room. The lease was brought to an end. The manner of the ending need not be stated, further than to say that defendant was entitled to the possession, though plaintiff remained in actual possession. Defendant, then, desiring to make some improvements and repairs, took down plaintiff's sign, and we will assume took exclusive possession of the stairway and passage, so that the effect was to cut plaintiff off from the use of the premises and prevent the patrons of his billiard hall from access thereto. The statement made by the plaintiff, both as written in his brief and as set up in his petition, is of considerable length and is somewhat complicated. But, as the case is briefed and argued in this court by each party, there is no question of fact in it; the contention between them being brought down to legal questions involving the rights of a tenant holding over against his landlord's consent, who is dispossessed against his will by the landlord's entry into the premises, though in taking possession defendant did not offer personal violence to plaintiff, nor did he destroy any of his property.

There was a time in the early days in England when the owner could forcibly dispossess one in possession without legal right, as, for instance, a tenant holding over, and the latter was without remedy. This state of the law led to unseemly conflicts and breaches of the peace, so that by act of Parliament it was made unlawful both criminally and civilly for the owner thus to take the law into his own hands. By these acts against forcible entry the rightful owner, though entitled to the possession, was made to restore it and set to seeking his rights in a lawful manner. These forcible entry and detainer statutes are found enacted, in quite similar form, in most of the states in this country. In this state they are found in Rev. St. 1899, §§ 2151, 3319-3357 (Ann. St. 1906, pp. 1384, 1878-1892). So, in view of the common law as it stood prior to such statutes, it was held that, as the tenant had no remedy prior to the statutes, he had none after their enactment save such as they gave. It was broadly stated that "at common law there was no civil remedy against a person who entered forcibly, having a right." Taunton v. Costar, 7 Term, 431. And our Supreme Court so states the law in the cases of Krevet v. Meyer, 24 Mo. 107, and Fuhr v. Dean, 26 Mo. 116, 69 Am. Dec. 484. It is so stated in a great number of cases arising in England and in this country. Hyatt v. Wood, 4 Johns. (N. Y.) 150, 4 Am. Dec. 258; Jackson v. Farmer, 9 Wend. (N. Y.) 202; Yeates v. Allin, 2 Dana (Ky.) 134.

Much of the confusion in the law on the subject arises from a failure to give heed to the character of action involved. The statements of the law just mentioned should only be intended as applying to actions for trespass quare clausum fregit. In such an action the plea that the realty was that of the defendant, liberum tenementum, is a good plea. It is therefore quite reasonable to say that for the mere dispossession, and for any injury to the realty in gaining possession, no damage can result to the tenant, since he has no right to the former and no property in the latter, and therefore has not suffered injury. And this should be taken to be the meaning of our Supreme Court in Krevet v. Meyer and Fuhr v. Dean.

But if the action is another character of trespass, as for assault and battery or destruction of personal property in gaining possession, a different case is presented and it receives a different answer. If one has the right of entry, and to dispossess another, who is wrongfully in possession, abuses such right and beats the other, or willfully destroys his property, he is liable for the damages, since no plea which he could make would meet such an invasion of another's right. By reference to some of the cases cited in support of the law in trespass quare clausum fregit, it will be seen that this difference is recognized. Thus in Yeates v. Allin, supra, it is said that "if Yeates abused his right of entry, and trespassed on the person, or the rights, of Allin, damages might be recovered for such a trespass. But the fact that, having a right to enter, he entered without Allin's consent, did not make him, as the instruction erroneously supposed, a trespasser, or entitle Allin to damages." And in Hyatt v. Wood, supra, Justice Spencer said that "very different considerations are applicable to an action for an assault and battery and an action of trespass quare clausum fregit. In an action for the personal injury, the defendant, who is not in possession, cannot justify an entry and the exercise of personal violence; but in an action for an injury to the land itself he may justify the force as respects the possession." In Todd v. Jackson, 26 N. J. Law, 525, the Chancellor said, at page 532 of the report, that he was "willing to lay down the law to be that the landlord may take possession by any means short of personal violence; that he may break into a dwelling house for the purpose, because no one ought to complain of him for such an injury done to his own property; that he may remove...