Lewis v. Perry

• Decision Date: 31 March 1899
• Citation: 149 Mo. 257,50 S.W. 821
• Parties: LEWIS v. PERRY et al.
• Court: Missouri Supreme Court

50 S.W. 821

149 Mo. 257

LEWIS v. PERRY et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1899.

LEASES — RENEWAL PERIODS — NOTICE TO LESSOR — WAIVER — AUTHORITY OF AGENT.

1. Under a lease authorizing renewals for periods of five years, at the lessee's option, on notice of an intention to renew before the end of a period, a retention of possession by the lessee, and reception of rent by the lessor, during a period, effect a renewal for the period, though the lessee failed to serve the notice.

2. The renewal takes place though the rent was paid to the lessor's agent, who was not authorized to renew.

3. Where the rent is payable quarterly, and the lessee continues in possession for a quarter after the termination of a renewal period, without having served notice of renewal under the lease, but without objection from the lessor, under the belief that he would waive the notice as he had done at the end of a previous period, the relation of landlord and tenant continues until the end of the period or the service of a statutory notice, so as to give the lessee a right to remove improvements authorized by the lease.

Appeal from St. Louis circuit court.

Proceeding in partition by Turner T. Lewis against Richard E. Perry and others. From a decree determining the rights of the parties, George R. Taylor appeals. Affirmed.

Valle Reyburn, for appellant. John H. Overall, for respondents.

BRACE, P. J.

This is a proceeding in partition in which George R. Taylor, one of the defendants, appeals from the interlocutory decree of the circuit court determining the respective rights and interests of the parties in the premises and ordering a sale thereof. By the decree it was, in effect, determined that the appellant was entitled to an undivided one-fourth part of the land, and the other parties the other undivided three-fourths thereof, as tenants in common in fee simple, but that the improvements thereon belonged to the other parties, and appellant had no interest therein, and upon this basis partition was decreed; the court in the decree determining, further, the interests of the other parties to the action in the improvements, and ordering separate sales of the land and the improvements, and giving to the purchaser of the latter the right to remove the same within 60 days after the approval of the sale. The exclusion of appellant from a share in the improvements is the sole ground of his complaint, his contention being that he is entitled to a share in the improvements proportionate to his share in the land, and this presents the only question in the case.

The undisputed facts in the case are that George R. Taylor, Sr., died testate, seised of the premises. By virtue of the power conferred upon them by the will of said deceased, Albin Miller and John Maguire, his testamentary trustees, by a written instrument duly executed on the 21st day of July, 1881, leased the premises to the St. Louis Malleable Iron Company, upon the following terms and conditions: "In consideration of the covenants, agreements, and stipulations hereinafter mentioned, as well as the rent of twenty-four (24) dollars and thirty-seven (37) cents to be paid on the first day of September, A. D. 1881, and the yearly rent of two hundred and ninety-two (292) dollars and fifty (50) cents thereafter during the term of this lease, payable in quarterly installments of seventy-three (73) dollars and twelve (12) cents each, on the first day of March, June, September, and December in each year, the first of said quarterly payments to be made on the first day of December, 1881, together with all general and special taxes which may be assessed against said property during the continuance of the lease or the renewals thereof, the said parties of the first part do by these presents lease to the said party of the second part, for the term of four months and three (3) years, which said term shall begin on the first day of August, 1881, and end on the said first day of December, 1884, the following described lot of land, to wit: A parcel of land in the city of St. Louis, state of Missouri, situated in block 1698 of said city, and fronting seventy-five (75) feet on the south line of Market street, and with that width running southwardly for a depth of one hundred and thirty-two (132) feet, more or less, to the alley, running east and west, and being composed of lots numbered 10, 11, and 12 of the subdivision made by George R. Taylor of part of lot one of the second series of the Chouteau Mill tract, and of which subdivision of a plat is on file in the recorder's office of the city of St. Louis, in Plat Book number 3, page 124. Every failure — First, to pay the said installments of rent, or any part thereof, when they are respectively payable, or within fifteen (15) days thereafter; or, second, to pay the said city and state taxes, or all other taxes, on demand, or any part thereof, legally required or demanded of said premises, within the year the same shall become due and assessed, and any failure of said lessee or its representative to keep and perform any of the other covenants, agreements, or stipulations herein, — shall make and create a forfeiture of this lease, and a termination of the time for which the above premises were let, and all the estate hereby conveyed shall be absolutely void, if so determined at any day or time, however distant after such failure, by notice in writing to that effect given by said lessors or their assigns to said lessee or its assigns, which said notice may be served by posting a copy or duplicate of the same at one of the most public places on said premises, or by delivering a copy or duplicate of said notice to said lessee or its assigns. This lease of said premises, or any part thereof, is not to be assigned under penalty of forfeiture, without the written consent of said lessors or their assigns. The said lessee, and all who may hold under it, hereby engage to pay double rent for every day it, or any one else in its name, shall hold the said premises, or any part thereof, after the expiration of this lease, or after a forfeiture thereof. The said lessee or its assigns is, under penalty of forfeiture, bound to keep said premises free from any disorderly, bawdy, or gambling establishments, dram shops, tippling shops, beer houses, or other nuisances whatever; and, in case of a forfeiture of this lease, the said lessors or their assigns may forthwith take possession of the said premises, with all the improvements thereon, and shall be entitled to the same, any custom, usage, or law to the contrary notwithstanding. But said lessee or its assigns may remove said improvements at any time within six (6) months after a forfeiture of this lease, by paying all unpaid rent, taxes, etc., then due. In case of punctual payment of the rent and taxes aforesaid, the said lessee or its assigns is authorized to remove all such improvements at the expiration of this lease, or of any renewal term thereof, which it, or any one who may claim under it, may have erected on said premises during said term or terms. Provided, however, and it is distinctly understood and agreed, that the said lessee or its assigns may, at its option, at any time during the continuance of this lease or any renewal term thereof, if it then and...