Maeder v. City of Carondelet

• Citation: 26 Mo. 112
• Parties: MAEDER, Respondent, v. CITY OF CARONDELET, Appellant.
• Decision Date: 31 October 1857
• Court: United States State Supreme Court of Missouri

26 Mo. 112

MAEDER, Respondent,

v.CITY OF CARONDELET, Appellant.

Supreme Court of Missouri.

October Term, 1857.

1. Although a covenant for quiet enjoyment is implied from the word ““demise” in a lease, this implication will not be raised where it is expressly stipulated in the lease that nothing therein contained shall be construed to imply a covenant for quiet enjoyment.

2. Prior to the revision of 1845 there was no statute in this state limiting the time within which actions of covenant might be brought.

Appeal from St. Louis Land Court.

This was an action by Maeder against the City of Carondelet commenced February 5, 1855. On the 8th of August, 1843, Carondelet made a lease of a lot in Carondelet common to John Maeder. This lease contained the words “grant, demise and to farm let,” &c. The lease also contained the following stipulation: “And it is further covenanted and agreed by and between the parties aforesaid, their successors in office or legal representatives, that nothing herein contained shall be construed to imply a covenant of quiet enjoyment on the part of the said parties of the first part, and their successors, to and with the said party of the second part and his legal representatives.” By lease dated December 14, 1843, Carondelet leased said tract to Auguste Gamache, senior. This lease was recorded May 24, 1851.

The defendant, in her answer, denied the delivery to plaintiff of the lease dated August 8, 1843; and admitted the execution of the second lease, the one to Gamache. The defendant also set up the statute of limitations; that there was no covenant of quiet enjoyment in the lease dated August 8, 1843.

On the motion of the plaintiff the court instructed the jury as follows: “If the jury find from the evidence that the defendant made a lease to plaintiff in August, 1843, for the premises in question, and that the defendant, in December, 1843, made another lease for the same premises to one Gamache without the assent of the plaintiff, and that Gamache took possession of the premises and caused his lease to be recorded so as to divest the right of plaintiff under the said lease to him, then the plaintiff is entitled to recover the value of the said leasehold interest at the time of the said lease to Gamache and the entry of Gamache thereunder.”

The court, on the motion of defendant, instructed the jury as follows: “1. If the jury believe from the evidence that the cause of action did not accrue within ten years before the time of the commencement of this suit, the plaintiff is not entitled to recover. 2. The plaintiff's right of action, if any, accrued on the 16th day of December, 1843.”

Other instructions were asked on both sides and refused by the court. The jury found a verdict for the plaintiff.

Casselberry, for appellant.

Primm, for respondent.

SCOTT, Judge, delivered the opinion of the court.

The evidence on the trial shows that no fraud was intended in the transaction between Gamache and the City of Carondelet. The lease to Gamache was relatively at a much lower rent than that made to the plaintiff, and was not recorded until the 24th of May, 1851, a period of seven years and some months. Had there been any design to defraud the plaintiff by the execution of the lease to Gamache, such lease would have been immediately put upon record; as until that was done, no injury from the second lease could have resulted to the plaintiff, as he might at any time during the period just mentioned have put his lease upon record and thereby have retained his priority to Gamache. These observations are not made with a view to...