McFarland Real Estate Co. v. Joseph Gerardi Hotel Co.

• Decision Date: 22 February 1907
• Citation: 100 S.W. 577,202 Mo. 597
• Parties: McFARLAND REAL ESTATE CO. v. JOSEPH GERARDI HOTEL CO.
• Court: Missouri Supreme Court

100 S.W. 577

202 Mo. 597

McFARLAND REAL ESTATE CO. v. JOSEPH GERARDI HOTEL CO.

Supreme Court of Missouri, Division No. 1.

February 22, 1907.

1. MORTGAGES — FORECLOSURE — EFFECT — LEASE SUBSEQUENT TO MORTGAGE.

A sale of property under a deed of trust which antedates a lease extinguishes the lease, leaving no estate in either party on which to base a legal claim.

2. LANDLORD AND TENANT — TENANCY AT WILL—CREATION—ORAL LEASE.

Where a lease has been extinguished by the sale of the property under a prior deed of trust, an oral contract to allow the lessee to continue under the terms of the lease until the date of its expiration does not revive the lease, but the lessee became a tenant at will.

3. SAME—TENANCY FROM MONTH TO MONTH —CREATION—TERMINATION.

Rev. St. 1899, § 4110 [Ann. St. 1906, p. 2234], provides that all contracts of leasing of buildings in cities, towns, and villages not in writing and signed by the parties shall be taken as tenancies from month to month, and cannot be terminated except by written notice of 30 days. Held, that a lessee of property sold under a trust deed which terminated the lease, who continued in possession under an oral agreement with the purchaser, became a tenant from month to month of the purchaser's grantee, and the prescribed notice was necessary to terminate his tenancy.

4. SAME—RECOVERY OF POSSESSION—UNLAWFUL DETAINER — PLEADING AND PROOF — OWNERSHIP.

Where a petition in an unlawful detainer proceeding alleges that a certain named person was the owner of the property prior to its sale under a deed of trust, that he conveyed the property to plaintiff, evidence cannot be introduced by plaintiff to show that at all the times mentioned it was the beneficial owner of the property; such evidence contradicting its pleading.

Error to St. Louis Circuit Court; Robert M. Foster, Judge.

Action by the McFarland Real Estate Company against the Joseph Gerardi Hotel Company. Judgment for plaintiff, and defendant brings error. Reversed.

This is an unlawful detainer proceeding, instituted before a justice of the peace on January 11, 1904, in the city of St. Louis, for the recovery of the possession of a tract of land 100 feet square, fronting on Taylor avenue, in said city, upon which was located the Westmoreland Hotel Annex, which will hereafter be called the "Annex," and removed, by writ of certiorari, to the circuit court because the question involved the title to real estate. The facts in the case are as follows: On and prior to January 9, 1899, David W. Graham was the owner, subject to a deed of trust thereon, dated June 23, 1898, and duly recorded, and as such owner leased same, together with another adjacent piece of ground, upon which was located the Westmoreland Hotel, which will hereafter be called the "Westmoreland," to plaintiff in error for the term of five years, ending the 9th day of January, 1904; that prior to January 9, 1904, David W. Graham, by warranty deed, conveyed to plaintiff, McFarland Real Estate Company, the Annex; that, there having been a default under the deed of trust, the trustee therein on July 21, 1899, sold and conveyed by trustee's deed both the Westmoreland and the Annex to John Koch; that on October 12, 1901, John Koch, by warranty deed, conveyed the Annex to the McFarland Real Estate Company, the defendant in error; that on the 9th day of March, 1899, David W. Graham conveyed the Westmoreland to Louis Bernero, and assigned to him $5,000 of the $7,200 yearly rental of the two places; that after the sale to Bernero defendant in error attempted to separate the two properties from the lease of January 9, 1899, and obtain a new lease for the Annex, but was unsuccessful in that; that it was finally agreed orally between them to carry on the terms and conditions of the lease dated January 9, 1899, and plaintiff in error retained possession of the premises until the expiration of the lease and paid the rent as it became due; that a few days prior to January 9, 1904, the day of the expiration of the lease according to its terms, defendant in error orally demanded possession of the Annex from plaintiff in error; that the plaintiff in error attempted to procure an extension of the lease, but the McFarland Company declined to extend it, and thereupon a controversy arose between them as to whether the lease had or had not been extinguished by the sale under the prior deed of trust, and the president of the plaintiff in error testified that the possession of the property had not been turned over to him on January 9, 1899, the date of the lease, but possession thereof had been wrongfully withheld from his company for two days, until January 11, 1899, and that in...