Metropolitan Land Co. v. Manning

• Decision Date: 05 January 1903
• Citation: Metropolitan Land Co. v. Manning, 71 S.W. 696, 98 Mo. App. 248 (Kan. App. 1903)
• Parties: METROPOLITAN LAND COMPANY, Appellant, v. JAMES H. MANNING, Respondent
• Court: Kansas Court of Appeals

71 S.W. 696

98 Mo.App. 248

METROPOLITAN LAND COMPANY, Appellant, v. JAMES H. MANNING, Respondent

Court of Appeals of Missouri, Kansas City

January 5, 1903

Appeal from Jackson Circuit Court.--Hon. John W. Henry, Judge.

REVERSED AND REMANDED (with directions).

Ward & Hadley for appellant.

(1) From and after November 9, 1901, the date of forfeiture of defendant's lease, defendant had no right in or to the possession of the ball park, and from and after the 12th day of November, 1901, defendant, his agents and servants, were trespassers therein. Callaway v. Henderson, 130 Mo 77; Webb v. Ins. Co., 14 Mo. 3; Patton v Bond, 50 Ia. 508; 18 Am. and Eng. Ency. of Law (2 Ed.) p. 371; Guffy v. Huskill, 34 W.Va. 49; 18 Am. and Eng. Ency. of Law (2 Ed.), p. 342. (2) Defendant's agents and servants were trespassers after November 12, 1901. Ragan v. Railroad, 144 Mo. 623; Taylor on Landlord and Tenant, sec. 774. (3) Injunction will lie in this case. R. S. 1899, sec. 3649; Webster v. Cook, 23 Kan. 637; Harber v. Evans, 101 Mo. 667; Jones v Williams, 139 Mo. 37. (4) Defendant's inability to get insurance after August 15, 1901, the date of cancellation of policies of insurance, did not excuse defendant in performance of his insurance covenant. Whittemore v. Sills, 76 Mo.App. 252; Harrison v. Railroad, 74 Mo. 371. (5) Defendant's failure to comply with his covenant to promptly pay the State and county taxes when due and payable, furnished the owner of the ball park ample ground, on November 9, 1901, for forfeiture of his lease. (6) Payment of state and county taxes for 1901 by defendant on the 12th day of November, 1901, was too late to avail defendant anything; for his lease had already seen forfeited by good and sufficient notice. Illingworth v. Miltenberger, 11 Mo. 61. (7) The writing signed by Arnold in Justice Pursley's court on the night of November 16, 1901, whereby Arnold agreed that defendant should have possession of the ball park until December 1, 1901, was unauthorized by plaintiff, without consideration, contrary to public policy and absolutely void. Sumner v. Summers, 54 Mo. 346; Baker v. Farris, 61 Mo. 390; McCoy v. Green, 83 Mo. 626.

Evans & Finley for respondent.

(1) Arnold's attempted entry into the premises made at 6 o'clock a. m., while defendant's watchman was at breakfast, was unlawful, and no right can be based thereon. It was not necessary that defendant have some one always in the park in order to hold possession. Krevet v. Meyer, 24 Mo. 107; Van Eman v. Walker, 47 Mo. 169; Harris v. Turner, 46 Mo. 438; Meriwether v. Howe, 48 Mo.App. 148. (2) Mr. Manning faithfully kept all the conditions of his lease and no ground for forfeiture ever existed. Forfeiture clauses are not favored either in law or equity, and their effect will be limited by a strict construction. 18 Am. and Eng. Ency. Law (2 Ed.), 371, and cases cited; Messersmith v. Messersmith, 22 Mo. 369; Lasser v. Baldridge, 32 Mo.App. 362; McCollum v. Ins. Co., 61 Mo.App. 352; Bispham's Principles of Equity (5 Ed.), 268; McKim v. Whitehall Co., 2 Md. Ch. 510; White v. Railroad, 36 Mich. 356; Gordon v. Lowell, 21 Me. 251; Fitzhugh v. Maxwell, 34 Mich. 138; Beecher v. Beecher, 43 Conn. 556; Shade v. Oldroyd, 39 Kan. 313; Elevator Co. v. Railway, 3 McCrary 463; Meni v. Rathbone, 21 Ind. 454; Eichenlaub v. Neil, 3 Ohio Dec. 365; Bowman v. Foot, 29 Conn. 341; Jackson v. Harrison, 17 Johns. (N. Y.) 66. (3) The lessor can not enforce a forfeiture after he has conveyed away his reversion though the cause of forfeiture occurred before the conveyance. Van Ransselaer v. Hayes, 5 Den. 317; 18 Am. and Eng. Ency. of Law (2 Ed.), p. 373; Woods, Landlord and Tenant, sec. 221, p. 452; Hendricks v. Dixon, 69 Mo.App. 197; Allen v. Kennedy, 91 Mo. 324. (4) The covenant to pay taxes "when due and payable" means that the taxes shall be paid before penalties are incurred for non-payment and before they become a burden on the lessor, and the breach of this covenant occurs when the taxes are paid by the covenantee and not before. Hendricks v. Dixon, 69 Mo.App. 197; Woods Landlord and Tenant, p. 961 et seq.; Whitman v. Nicoll, 38 N.Y.S. 528; Goode v. Ruchle, 23 Mich. 30. (5) The testimony is also uncontradicted that the insurance was cancelled and could not thereafter be procured, or renewed, because the fact of the sale of the property by Holmes and the purpose of the purchasers to tear down and remove the improvements, had been made public, and the property was, for those reasons, no longer insurable. Clark v. Brookfield, 81 Mo. 509; Seamon v. Paddock, 55 Mo.App. 296; McCulloch v. Baker, 47 Mo. 401; Baker v. Railroad, 19 Mo.App. 321; Fitzgerald v. Hayward, 50 Mo. 516; Park v. Kitchen, 1 Mo.App. 357; Doyle v. Turpin, 57 Mo.App. 84; Tiedeman on Real Property, sec. 274; 2 Washburn on Real Property (4 Ed.), 447 and 448. (6) Equity never lends its aid to enforce a forfeiture. Messersmith v. Messersmith, 22 Mo. 369; Towne v. Bowers, 81 Mo. 491. On the other hand, it will always relieve against forfeiture when compensation in damages can be computed with certainty. Messersmith v. Messersmith, supra; Giles v. Austin, 62 N.Y. 486; Rector v. Higgins, 48 N.Y. 533; Crawford v. Waters, 46 How. (N. Y.) 210; Carroll v. Ins. Co., 10 Abb. N. S. (N. Y.) 166; Bleeker v. Smith, 13 Wend. (N. Y.) 530; Jackson v. Brownson, 7 Johns. (N. Y. 9) 227; Ireland v. Nichols, 46 N.Y. 413; Nagle v. League, 70 Mo.App. 487; Thresher Co. v. Pierce, 74 Mo.App. 676; Association v. Trust Co., 73 Mo.App. 161; Jordan v. Mfg. Co., 77 Mo.App. 572; Williams v. Realty Co., 153 Mo. 487. (7) Injunction will not lie in this case. Janney v. Spedden, 38 Mo. 402; Echelkamp v. Schrader, 45 Mo. 505; Smith v. Jamison, 91 Mo. 13; Bodwell v. Crawford, 26 Kan. 292; Lacassagne v. Chapius, 144 U.S. 119 (36 L.Ed. 368); Babb v. Woodward, 42 Mo. 488; Mooney v. Kennett, 19 Mo. 551; Weigel v. Walsh, 45 Mo. 560; Railway v. Mattox, 92 Mo. 479; Mining Co. v. Mining Co., 5 Mo.App. 525; High on Injunctions (3 Ed.), sec. 434; Bodwell v. Crawford, 26 Kan. 292; Johnson v. Glenn, 40 Md. 200. (8) The lease and possession was ratified by Arnold.

OPINION

ELLISON, J.

This proceeding is an injunction to prevent the continuation of trespasses on real estate. A temporary writ was issued which, at the hearing in the trial court, was dissolved. A receiver was appointed to take charge of the property and collect amounts due on games to be played on the day succeeding the issuing of the writ.

There is wide disagreement between the parties as to many of the facts in the case which tends somewhat to confuse an effort to ascertain the merits of the questions at issue. There are, however, certain matters going far towards a settlement of the controversy which are indisputable. These are that James T. Holmes was owner of the property, and that in December, 1900, he leased it to defendant for a term of five years from January 1, 1901, who used it principally as baseball grounds and occasionally for playing games of football. The lease provided that defendant should "have all improvements on said property insured during the term of the lease in the sum of at least four thousand dollars." And that he would "pay all general taxes, state, county and city, which may be assessed against said premises during or for the said term of five years which the lease has to run, promptly when the same becomes due and payable." The lease further provided that if these covenants were not kept it should be "forfeited at the option" of Holmes.

Holmes by a general warranty deed dated and acknowledged August 10, 1901, sold said property to the Western Cattle Brokerage Company; and that company, on November 9, 1901, sold it to the Metropolitan, this plaintiff. That James H. Arnold was the president and active manager of both these corporations. That on November 9, 1901, Holmes had served on defendant a written notice of forfeiture (dated November 4, 1901) on account of his having failed to pay the taxes for 1901, and to keep up said insurance. Each of the companies aforesaid had knowledge of defendant's lease, and while the deeds are silent on that subject, they, in point of fact, bought subject to the lease.

From this point on the evidence discloses that active hostilities began between the parties; and while much of the evidence is undisputed, its effects on the rights of the parties is vigorously contested. It seems that Manning, being absent, had given Dr. Shively the privilege of practicing for games about October 1, 1901. After Holmes's sale to the Western Cattle Brokerage Company in August, that company, through its employees and servants, entered upon the premises and looked after them generally, and this was continued along in the same way without objection or resistance from any one after this plaintiff purchased. The ball grounds were fenced and had different openings or gates. Inside was an amphitheatre, such as is usually found on such grounds, as well as a house known as a "clubhouse." It seems that at the time of the purchase from Holmes by the Western Cattle Brokerage Company, the premises were not closely guarded and persons could go in and out at pleasure except when a game was to be played. The evidence as to the time that possession was taken by the Western Cattle Brokerage Company and when this plaintiff succeeded to that possession, is somewhat confusing. But it seems certain that on November 1 the former company had the gates and doors locked and maintained and continued the maintenance of a watchman, and that on November 9, this was continued by this plaintiff; the same watchman being continued, his name being changed to the pay rolls of this plaintiff. On the latter date this plaintiff let the grounds for a game of football and received the rental therefor.

The...