May v. Luckett

• Decision Date: 31 October 1871
• Citation: 48 Mo. 472
• Parties: ROBERT A. MAY, Appellant, v. ROBERT F. LUCKETT, Respondent.
• Court: Missouri Supreme Court

48 Mo. 472

ROBERT A. MAY, Appellant,

v.ROBERT F. LUCKETT, Respondent.

Supreme Court of Missouri.

October Term, 1871.

Appeal from St. Charles Circuit Court.

H. C. Lackland, for appellant.

Defendant was not plaintiff's tenant, nor did he attorn to his grantee. Hence the case of Pentz v. Kuester has no application. Such attornment is essential; otherwise the possession remains unchanged in the landlord.

In the case at bar the possession was in plaintiff when defendant entered, and the entry was trespass. (Forcible Entry and Detainer Act, §§ 1, 16, 36.)

J. A. Kellar, for respondent.

I. Defendant's entry was made with the knowledge and consent of plaintiff's tenant.

II. Plaintiff's tenant had a legal right to attorn to plaintiff's grantee.

III. As between landlord and tenant, possession cannot be in both at the same time. (Burns v. Patrick, 27 Mo. 434; McCartney's Adm'r v. Alderson, 45 Mo. 35.)

IV. It is not sufficient that the entry is unlawful. It must be unlawful against the party who complains. Plaintiff in this case must himself have been disseized.

V. The deed of the sheriff being regular in form is valid for all purposes and amounts in law to the act of the appellant himself. That deed divested him of all right of property in the land, and he not being in actual possession of the land, could certainly not be said to be in the constructive possession of the land. The premises were vacant, and the defendant could enter lawfully if he could do so peaceably. (Wagn. Stat. 61, art. I, §§ 1, 32; Packwood v. Thorp, 8 Mo. 636.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff rented certain premises to one Mrs. Pulliam, and while she was in possession they were sold upon execution against him and bid in by defendant's grantor. An effort was made to induce Mrs. Pulliam to attorn to defendant, but refusing to do so she abandoned the premises, leaving the key in the door, and within twenty-four hours the defendant entered. The plaintiff was a non-resident, and when advised of the transaction brought his action for unlawful detainer. The case was appealed, and in the Circuit Court the defendant was permitted to prove the execution, sale and deeds; and the court holding that the plaintiff was dispossessed before defendant's entry, and the latter lawfully in, gave him but judgment, from which the former appeals.

There is no dispute as to the evidence, only as to its legal effect. The tenant abandoned the premises and surrendered possession to the landlord. She could, by simply leaving so as to terminate her tenancy, surrender to no one else, nor did she attempt to give the defendant possession. Although the dispossession of the tenant during his term is not the dispossession of the landlord so as to enable him to bring suit, inasmuch as he has no right of entry until the term ends, and the tenant alone is injured by its invasion; yet when the tenant leaves, either at the end of the term or by surrender of the lease, the landlord comes into sole possession, and he must be considered as possessed of the premises, though not personally present. And it is not the constructive possession alone arising from title, for that is not sufficient to maintain this action, but a real possession arising from his relation of landlord, had when he put the tenant in, held through the tenant, and continued and become exclusive at the termination of the tenancy, and until he has time by his acts to indicate his intentions in regard to the possession. “Can it be pretended that an owner of land loses his actual possession because, after the expiration of a tenant's term, and perhaps before the owner can find another, some intruder enters and takes possession? Whether the intruder be a mere trespasser or have good title makes no difference.” (Warren v. Ritter, 11 Mo. 354.) If the landlord when not present were held to be out of possession when the tenant has left, so that a stranger or adverse cl...