Medicus v. Altman
| Decision Date | 20 May 1918 |
| Parties | LESLIE V. MEDICUS, Respondent, v. T. A. L. ALTMAN, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. William O. Thomas, Judge.
REVERSED.
Judgment reversed.
Sharp & Sharp and Ed. E. Aleshire for appellant.
W. F Stafford for respondent.
Plaintiff's action is founded on a bill in equity to restrain defendant from prosecuting an action for unlawful detainer against plaintiff. The judgment in the trial court was for plaintiff.
It appears that Laura S. Eddy owned the property in question. She executed a lease to C. C. Rhodes on the 9th of January 1914, for three years containing a provision that "The said C. C. Rhodes is to have the option of two years extension of this lease at the expiration of his term herein at the same rental." Rhodes assigned the lease to plaintiff on the 27th of September, 1915, and the latter went into possession.
After executing the lease to Rhodes, viz, on the 30th of August, 1914, she gave a deed of trust on the property, which was foreclosed on the 8th of September, 1916, and Gertrude Zeller became the purchaser; and she, in the next month, to-wit the 20th of October, sold it to defendant Altman, plaintiff being then in possession as tenant under the assignment of the Rhodes lease to him. Defendant Altman notified plaintiff that he had become the owner of the premises and to thereafter pay the rent to him. Plaintiff thereupon did pay to him the rent reserved in the lease for several months, up to April, 1917; the months of February and March being after the expiration of the original three years term. They were consequently within the two year extension period provided in the lease.
The lease given by Laura S. Eddy to Rhodes was not recorded but the fact that the plaintiff was in possession of the property as a tenant and that the defendant notified him that he had become the owner and that he (the tenant) must pay the rent to him and that he accepted such rent for several months is evidence to fully justify the conclusion that defendant had notice of the lease. [Davis v. Briscoe, 81 Mo. 27, 37; Shaffer v. Detie, 191 Mo. 377, 393, 90 S.W. 131; State Bank v. Frame, 112 Mo. 502, 509, 20 S.W. 620; Morrison v. Juden, 145 Mo. 282, 298, 46 S.W. 994; Quinn v. Valiquette, 80 Vt. 434, 447, 68 A. 515; 24 Cyc. 926.]
The lease being binding on defendant, the question arising on that fact is what rights has the plaintiff as tenant under the lease? We think that his holding over the original term (defendant acquiescing) and paying rent to defendant was an election to accept the extension for two years as provided in the lease. [Lewis v. Perry, 149 Mo. 257, 267, 268, 50 S.W. 821; Realty Co. v. Brecht, 109 Mo.App. 25; Insurance Co. v. National Bank, 71 Mo. 58; Miller v. Albany Lodge, 168 Ky. 755, 182 S.W. 936; Hurley Tobin Co. v. White, 84 N.J.Eq. 60, 94 A. 52; Kean v. Story Piano Co., 121 Minn. 198, 140 N.W. 1031.] The lease may be said to be, in effect, a present demise for the term, as extended, with the right in the tenant to reject the extension, if he so elects.
But defendants have questioned plaintiff's remedy; and have affirmed that there was no necessity for a resort to equity since every material part of his case could have been presented as defense in the unlawful detainer. If the provision in the lease were for a "renewal" for two years, and showed a new lease was intended, instead of an "extension" for that time, we could readily overrule the point since in that condition of case, under decisions in this State, it would require the interposition of equity to enforce a renewal provision by specific performance, and as a justice of the peace has not jurisdiction of questions in equity, the only remedy of the tenant, would be in the circuit court on a bill to restrain prosecution of the suit in unlawful detainer. [Finney v. Cist, 34 Mo. 303, 309; Blount v. Connolly, 110 Mo.App. 603, 85 S.W. 605.] But in those cases the lease contemplated the making of a new lease, if the tenant decided to keep beyond the original term. While in the case before us, the lease merely provides for an extension; no portion of it expressing, or showing, any intention to provide...
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