Lyon v. La Master

• Decision Date: 09 March 1891
• Parties: LYON v. LA MASTER.
• Court: Missouri Supreme Court

15 S.W. 767

103 Mo. 612

LYON v. LA MASTER.

Supreme Court of Missouri, Division No. 1.

March 9, 1891.

LANDLORD AND TENANT — RECOVERY OF POSSESSION.

While defendant in ejectment was in possession of land under a lease from one Z., the latter conveyed the land to plaintiff by quitclaim deed, and defendant, being notified of the conveyance, acquiesced therein. Afterwards defendant took a lease of the land from a third person. Held, that by attorning to a stranger, and repudiating the relationship theretofore existing between himself and plaintiff, defendant forfeited his right to notice to quit.

Appeal from circuit court, Buchanan county; OLIVER M. SPENCER, Judge.

E. C. Zimmerman and J. W. Boyd, for appellant. Huston & Parish, for respondent.

SHERWOOD, C. J.

Ejectment for lots 6, 7, and 8, in block 50, in the St. Joseph Extension addition to the city of St Joseph. The defendant was the tenant of Zimmerman, who transferred the lots by deed of quitclaim to plaintiff, and the defendant was duly notified of such transfer, and, it seems, acquiesced therein at the time of being informed thereof, but before suit brought acted in a very different way, as will presently appear.

1. The case turned in the trial court on the sufficiency of the notice to quit, served on the defendant by the plaintiff, and, as that court deemed the notice insufficient, the plaintiff was forced to take a nonsuit, with leave, etc. The action of the court in excluding the notice to quit cannot be considered here, because no such point was made in the motion for a new trial. This has been ruled many times in this court. Vineyard v. Matney, 68 Mo. 105, and cases cited, and numerous other cases.

2. But though we are thus precluded from discussing the sufficiency of the notice to quit, we are still at liberty to read the testimony introduced by the plaintiff, which was all that was introduced. From this it appears that the defendant, prior to suit brought, had leased the premises from one Albin, thus attorning to a stranger, and repudiating the relationship theretofore existing between himself and the plaintiff. It is insisted on behalf of the defendant that the tenancy in question was one from year to year, and that therefore he was entitled, under the provisions of section 3077, to three months' notice. But it is quite immaterial whether he was a tenant of this sort or whether he should be regarded as a tenant at will, and as requiring but one months' notice to quit under the...