McCartney v. Auer

• Citation: 50 Mo. 395
• Parties: SAMUEL MCCARTNEY et al., Plaintiffs in Error, v. JOHN A. AUER, Defendant in Error.
• Decision Date: 31 July 1872
• Court: Missouri Supreme Court

50 Mo. 395

SAMUEL MCCARTNEY et al., Plaintiffs in Error,

v.JOHN A. AUER, Defendant in Error.

Supreme Court of Missouri.

July Term, 1872.

Error to Kansas City Court of Common Pleas.

W. Hough, for plaintiffs in error.

Although the complaint in this cause may be said to be, under a strict construction of its language, for a forcible entry and a forcible detainer, yet, whether the entry be with or without force, the detainer is unlawful whether maintained with or without force; and the proof, to maintain an action under either section 2 or 3 of chapter 61, Wagner's Statutes, is, under section 16 of that chapter, p. 645, the same. (Wunsch v. Gretel, 26 Mo. 580.) The attornment by Threlkeld to Brown, without the consent of his landlord, was void, and Threlkeld still remained tenant of the plaintiffs. (Rutherford v. Ullman, 42 Mo 216.) The testimony of William Douglas to prove a demand by the plaintiffs, for the possession of the premises from Auer, after the expiration of Threlkeld's term, was admissible. (Reed v. Bell, 26 Mo. 218; Wagn. Stat. 879, §§ 10, 11.)

Tichenor & Warner and Brown & Case, for defendants in error.

I. This is an action of forcible entry and detainer by plaintiffs, who were in possession, not actually, but by their tenant, Threlkeld; if so, tenant must bring this action and not his landlord. (Burns v. Patrick, 27 Mo. 435; McCartney's Adm'r v. Alderson, 45 Mo. 35.)

II. Defendant, by plaintiff's evidence, came in by invitation of plaintiff's tenant, and on payment to him of $300; hence there was but one way for plaintiffs to proceed to get possession, and that was, not by the forcible entry and detainer act, but by the landlord and tenant act. (Wagn. Stat. 879, § § 10, 11; Reed v. Bell, 26 Mo. 217.)

III. The court committed no error in excluding evidence of demand in writing for possession. The complaint is such, if true, that none was necessary. (Burns v. Patrick, supra; Wagn. Stat. 642, § 3.)

WAGNER, Judge, delivered the opinion of the court.

This suit was brought before a justice of the peace to recover possession of certain premises in Kansas City. At the trial before the justice the defendant had judgment. The case was then appealed to the Court of Common Pleas, and after hearing the testimony the court gave an instruction that, upon the evidence, the plaintiffs could not recover. A nonsuit was then taken, and after an unavailing motion to set the same aside, a writ of error was sued out. The evidence adduced at the trial shows that the plaintiffs were in possession of the premises by their tenant, and while the tenant was so in possession he delivered up the key of the storehouse to another party, and then accepted the key back as the tenant of one P. S. Brown, under an arrangement made with Brown. A short time after this arrangement, in consideration of $300 paid him by the defendant, the tenant, who had continued in the occupancy all the time, delivered the possession to the defendant, who still retained the possession at the commencement of this suit.

This attornment by the tenant was not made with the assent of the plaintiffs, nor in pursuance of any provision of law on the subject. The attornment was void and did not in the least affect the possession of the landlords. (Wagn. Stat. 880, § 15; Rutherford v. Ullman, 42 Mo. 216.)

The statute provides that no tenant for a term not exceeding two years (and here the tenancy was yearly) or at will, or by sufferance, shall...