Morris v. Horrell

• Decision Date: 31 March 1865
• Citation: 35 Mo. 467
• Court: Missouri Supreme Court
• Parties: JAMES MORRIS, TRUSTEE, &c., Respondent, v. THOMAS J. HORRELL et als., Appellants.

35 Mo. 467

JAMES MORRIS, TRUSTEE, &c., Respondent,

v.THOMAS J. HORRELL et als., Appellants.

Supreme Court of Missouri.

March Term, 1865.

Appeal from St. Louis Common Pleas.

H. Cobb, for appellants.

Conditions not allowed by law, when inserted in a statutory bond, are illegal and void.

I. The summary remedy provided by the statutes in the Landlord and Tenant Act should be strictly construed, and the landlord should not be allowed any more privileges thereby than such as the law clearly allows.

II. The law expressly allows a “condition to stay waste,” but does not thus allow a condition to pay rent to be inserted in the appeal bond; and if a court should construe such a condition to be legal, it would enlarge the privileges of the landlord beyond the limits that a literal construction of the law allows.

III. It is not the province of the court, but of the Legislature, to modify the law so as to change the standard amount of a bond into a condition to pay a certain debt of that standard amount.

IV. If the Landlord and Tenant Act is defective in its severity in favor of the landlord, he who invokes it must abide by its defects of severity.

V. The law does not allow the condition that the defendant shall prosecute his appeal unconditionally “with effect” to be inserted in the bond; but instead thereof declares that the condition to be inserted in the bond shall be, “if his appeal shall be dismissed, and he shall pay the judgment of the justice, together with the costs of the appeal, the recognizance shall be void” (see § 4, p. 973, R. C. 1855); and as this condition is clearly allowed, and is in the distinct “manner provided by law for appeals,” another ambiguous provision cannot be permitted to prevail over and nullify it, in order to add severity to a law otherwise harsh.

In the case of the United States v. Hopkins, (2 Hall's Am. L. J.,) the court decided, “that a condition in a bond taken by a public officer, not authorized by the law which requires the bond, is void, and no action can be maintained for the breach of such condition. (1 Peters, C. C. R. 46; 5 Barr. 250; R. C. 1855, p. 927, § 4, & R. C. 1855, p. 1018, § 41.)

L. Eaton, for respondent.

DRYDEN, Judge, delivered the opinion of the court.

This was an action founded on a penal bond given by the appellants to the respondent, on an appeal to the Land Court from the judgment of a justice of the peace, in a proceeding instituted by the respondent against the appellant Horrell, to recover possession of a dwelling-house in the city of St. Louis, under the provisions of the Landlord and Tenant law of 1855. (R. C. 1855, p. 1016, § 33.) The appeal having been dismissed in the Land Court, the present action was brought on the appeal bond, to recover damages for breach of its conditions. Breaches of the several conditions were duly assigned in the petition, the main one being the nonpayment of the rents, amounting to seven hundred dollars due on the property involved in the proceeding before the justice of the peace. The appellants demurred to the petition; the demurrer was overruled, and the defendants having failed to avail themselves of the privilege of answering within the time prescribed by the rules of the court, an interlocutory judgment was rendered in the case for want of an answer, and afterwards, during the same term, an inquiry of damages was had, and the interlocutory judgment was made final. The defendants then moved to set aside the finding and judgment of the court, but the motion being overruled, they appealed to this court. The objections urged in this court to the action of the Common Pleas resolve themselves into these three:

1. That the condition expressed in the bond to pay rent due and to accrue on the property then in controversy was not warranted by the statute and was therefore void, and the petition which sought a recovery for the breach of that condition was for that cause bad, and should have been so held on demurrer.

2. That the evidence, on the inquiry of damages, disclosed the fact that, at the time of the institution of the original suit for possession, the sum claimed in that proceeding to be due for rent, was greatly in excess of the sum then really due, and that for this cause the respondent should not have been permitted to recover in the present action; and

3. That the final judgment was prematurely rendered and ought to have been set aside on the appellant's motion.

1. As to the...