Longacre v. Longacre

• Decision Date: 08 June 1908
• Citation: 111 S.W. 855,132 Mo.App. 192
• Parties: RICHARD I. LONGACRE, Appellant, v. STANLEY I. LONGACRE, Respondent
• Court: Kansas Court of Appeals

111 S.W. 855

132 Mo.App. 192

RICHARD I. LONGACRE, Appellant, v. STANLEY I. LONGACRE, Respondent

Court of Appeals of Missouri, Kansas City

June 8, 1908

Appeal from Johnson Circuit Court.--Hon. Nick M. Bradley, Judge.

AFFIRMED.

Judgment affirmed.

Walter L. Chaney and Jas. A. Kemper for appellant.

(1) The facts create a tenancy from November 24, 1906, to January 1 1907, a time certain, fixed and agreed upon. (2) In this case no notice to quit was necessary, the time for the termination being definite, certain and understood. Young v Smith, 28 Mo. 65; Butts v. Fox, 96 Mo.App. 437; Mostin v. Wetsinger, 99 Mo.App. 613; Ray v Blackman, 120 Mo.App. 497. (3) The last contract was a legal and valid one, being for less than a year, and was a different contract from the one under which defendant originally held possession. Hence it works a surrender of the old contract and a substitution of the new. 2 Wood's Landlord and Tenant (2 Ed.), sec. 490, p. 1162. (4) Upon defendant's theory, plaintiff is entitled to recover for the further reason that if there was a contract of tenancy between the plaintiff and the defendant, or, if the relations existed between them and there was a new contract made as the court has found, then there was a merger of the two tenancies, and an extermination of the former, even where the latter was of a shorter term than the former. 2 Wood's Landlord and Tenant (2 Ed.), sec. 502, p. 1188; 24 Cyc. of Law and Procedure, sec. 3, p. 1369; Enyeart v. Davis, 22 N.W. 449; Wade v. South, 32 S.E. 169; 24 Cyc. 1369, under note 68, authorities cited; Edwards v. Hale, 16 S.E. 487; Hart v. Pratt, 53 P. 711; Brown v. Carrns, 77 N.W. 478; Wade v. Oil Co., 32 S.E. 169; 8 Ballard Law of Real Property, sec. 419; Coc v. Hobby, 72 N.W. 145. (5) A contract to surrender a parol lease need not be in writing, if valid, for the reason that it comes within the exception of the Statute of Frauds, and that no more particularity is required in surrendering a lease than there is in making one. 8 Amer. and Eng. Ency. of Law (1 Ed.), p. 669, note 4; South v. Devlin, 23 N.Y. 364. (6) The surrender of a tenancy by operation of law is a full and complete one, and each of the parties is bound thereby, even if it should be contrary to the intention of the parties. Hence, a surrender "by operation of law" need not be, and never is in writing. 8 Am. and Eng. Ency. of Law (1 Ed.), pp. 669, 670. (7) This contract is taken out of the Statute of Frauds by a full and complete performance thereof, by the lessor.

D. T. Boisseau and M. D. Aber for respondent.

(1) Upon the facts as found by the trial court, the judgment was right, and the only judgment which could have been rendered. R. S. 1899, sec. 3415; Tobener v. Miller, 68 Mo.App. 569; 8 Encyclopedia of Evidence, p. 76, and cases cited; Bailey v. Wells (Wis.), 76 Am. Dec. 233; 24 Cyc., p. 1367, and cases cited; Fish v. Thompson (Mich.), 88 N.W. 896. (2) The court finds that this tenancy began June 15, 1905, to last while the parties thereto should agree. This, therefore, was not an agreement to end at a time certain and could not be made so by a subsequent oral agreement. Smith v. Smith, 62 Mo.App. 596. (3) Under the finding of facts made by the court, there was no consideration paid by plaintiff for the oral agreement to surrender possession January 1, 1907. But even if there had been, it would not avail plaintiff. He must be presumed to know the law. Smith v. Smith Bros., 62 Mo.App. 602; Nichols v. Bank, 55 Mo.App. 91. (4) And if plaintiff had paid a consideration for the void agreement, his only remedy would be an action against defendant for money had and received. McDonald v. Lynch, 59 Mo. 350; Galway v. Shields, 66 Mo. 313; Fish v. Thompson (Mich.), 88 N.W. 896; Lamar v. McNamee (Md.), 32 Am. Dec. 152. (5) Even though the relation of landlord and tenant had not existed, still plaintiff could not recover upon an oral promise to give possession. Boyd v. Paul, 125 Mo. 9; Davis v. Callahan, 66 Mo.App. 176.

OPINION

BROADDUS, P. J.

This action is for unlawful detainer. The facts of the case as found by the court were as follows:

"In this case, the court finds the facts to be that, on or about June 15, 1905, plaintiff was the owner of the lands described in his complaint; that he was a widower; that defendant, his grandson, was living at Chapel Hill, in Lafayette county, with his wife and children; that on or about said time said plaintiff and defendant entered into an agreement whereby defendant was to move onto plaintiff's farm, with his family, and to occupy said farm thereafter as the tenant of plaintiff; that he was to pay as rental therefor all of the taxes assessed against said land, keep the farm and buildings in good repair, do all fencing necessary, and board and care for plaintiff and provide him with all needed clothing; that plaintiff was then about 78 years of age; and in return therefor defendant was to have the use of said farm as long as they should agree; that his arrangement continued, and plaintiff and defendant continued to live upon said premises thereunder until about November 24, 1906; that in October, 1906, differences having arisen between the parties, an agreement and contract was entered into between plaintiff and defendant, whereby they settled and adjusted all matters and accounts between them, and it was also agreed that defendant should surrender possession of said premises to plaintiff on January 1, 1907. The court further finds that said agreement as to the surrender of said farm was wholly oral, and that there was not at the time nor at any subsequent time any deed or note in writing of said agreement made, signed by either of the parties thereto, or the agent or agents of them or either of them thereto lawfully authorized by writing. The court further finds the defendant did not give any possession at any time after the said agreement of November 24, 1906, but continued to occupy said premises, and still so continues." The judgment was for the defendant and plaintiff appealed. There being practically no dispute as to the facts the question for our consideration is only one of law.

The tenancy being one at will and no notice to quit having been shown the plaintiff relied on a verbal agreement to quit at a certain time. This was not sufficient. An oral agreement to give possession of land is within the Statute of Frauds. [Boyd v. Paul, 125 Mo. 9, 28 S.W. 171.] "The only way to terminate a tenancy from month to month is by giving written notice, and a verbal agreement that such a tenancy terminate at a certain time falls within the prohibition of the statute." [Smith v. Smith, 62 Mo.App 596.] "A parol contract for the future delivery of the possession of lands is an interest...