Mullaney v. McReynolds

• Decision Date: 07 April 1913
• Citation: 155 S.W. 485,170 Mo. App. 406
• Parties: MULLANEY v. McREYNOLDS et al.
• Court: Missouri Court of Appeals

155 S.W. 485

170 Mo. App. 406

MULLANEY v. McREYNOLDS et al.

Springfield Court of Appeals. Missouri.

April 7, 1913.

1. JURY (§ 14) — RIGHT TO JURY TRIAL — EQUITABLE ACTION.

Where in ejectment the pleadings of both parties raised equitable issues, plaintiff could not complain of the court trying the case as one

in equity and denying him the right to trial by jury.

2. APPEAL AND ERROR (§ 1011) — FINDINGS — CONCLUSIVENESS.

A finding on conflicting testimony heard by the trial court will not be disturbed on appeal.

3. LANDLORD AND TENANT (§ 110) — ABANDONMENT BY TENANT — QUESTION OF FACT.

The question of the abandonment of leased premises by a tenant so as to give the landlord the right of re-entry is largely a question of fact.

4. LANDLORD AND TENANT (§ 277) — NONPAYMENT OF RENT — FORFEITURE.

Nonpayment of rent does not generally give a right of forfeiture and re-entry, where there is no forfeiture clause in the lease.

5. LANDLORD AND TENANT (§ 110) — ABANDONMENT — FORFEITURE FOR NONPAYMENT OF RENT.

The absence in a lease of a clause providing for forfeiture thereof for nonpayment of rent is immaterial on the issue of the tenant's abandonment, which is such a relinquishment as justifies an immediate resumption of possession by the landlord.

6. LANDLORD AND TENANT (§ 110) — ABANDONMENT — RIGHT OF TENANT.

A tenant who abandoned the premises, and thereby justified the landlord in re-entering, may not recover possession after the landlord re-entered and leased the premises to a third person.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by P. J. Mullaney against Earnest O. McReynolds and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Thompson & Thompson, of Webb City, for appellant. J. D. Harris, of Carthage, and A. G. Young, of Webb City, for respondents.

STURGIS, J.

The plaintiff brought this suit in ejectment for the possession of certain lands in Jasper county, Mo., predicating his title and right to possession on a lease from the defendant Lucinda Murray, the owner of the land. The defendant McReynolds filed answer admitting possession and justifying such possession on a later lease from the same owner. The answer of Lucinda Murray is a general denial, together with a plea that the alleged lease to the plaintiff purports to be for a term of five years; and, not having been signed by her or her agent thereto lawfully authorized in writing, the same was void under the statute of frauds; also that the plaintiff had forfeited his lease and right to possession to the land by abandonment of possession and surrender back to her as owner; also that plaintiff had forfeited his lease by failure to pay rent as therein provided. Her answer prayed that said lease to plaintiff be declared null and void for the above reasons; and that, as the same casts a cloud upon her title, the same be canceled and the plaintiff be perpetually enjoined from claiming any right to said premises or the possession thereof. Plaintiff filed a reply to these answers, in which he likewise prayed that the lease to defendant McReynolds be declared fraudulent and void for certain reasons therein stated, and that defendant McReynolds be perpetually enjoined from claiming or asserting any right to the said land or to possession thereof.

One of the errors complained of by plaintiff is that the court denied him the right of trial by jury. It appears from the pleadings that both parties sought to inject equitable matters into the pleadings and trial of this case, and after so doing the plaintiff ought not to be heard in any complaint that the court tried the case as one in equity. Besides this, the judgment entered by the court recites that the parties waived a jury.

The facts in the case show that defendant Murray placed the land in question in the hands of A. G. Young, of Webb City, Mo., to rent for her, giving him full power and authority, though not in writing, to rent the same, collect the rent, and take full charge of this part of her business. Mr. Young rented the land to plaintiff for a term of five years, beginning March 1, 1909, and ending March 1, 1914. This written lease was signed "Lucinda Murray, by A. G. Young, Agent." The land in question is agriculture land and was leased to plaintiff for that purpose. The plaintiff went into possession of the land in question under this lease and almost exclusively by subtenants farmed the same for the years 1909 and 1910. The plaintiff himself did very little, if any, farming of this land and had no teams or farming implements of any consequence with which to carry on farming operations. The lease contained a clause forbidding him to sublet the premises or any part of the same; but we think the evidence is clear that the landowner, personally and through her agent, had full knowledge that the plaintiff was farming the land almost exclusively by subletting it to others and waived this provision of the lease.

It is also shown that plaintiff's farming venture was not much of a success; and that during the two years during which he farmed the same, in the manner above mentioned his income from the same was hardly enough to pay the rent due Mrs. Murray as landowner. Some of the subtenants paid the plaintiff cash rent and others paid him grain rent. To some of them he gave leases on parts of the land coextensive with his own lease, and others had shorter leases with options to renew the same from year to year. In the fall of 1910, the plaintiff, then being in arrears in the payment of his rent to the extent of $75 or more, without any notice to defendant Murray or her agent left this state and went to Texas. He gave very little information to his subtenants or to any one else as to...