Murray v. Armstrong

• Decision Date: 31 October 1847
• Parties: MURRAY v. ARMSTRONG.
• Court: Missouri Supreme Court

11 Mo. 209

MURRAY

v.ARMSTRONG.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

LESLIE & LORD, for Appellant. Each of the instructions asked for in the court below should have been given, and the refusal to give them is such error as ought to reverse the judgment. 12 East, 444; Roscoe, 130. Two propositions of law of importance to the appellant are contained in the first three instructions asked for and refused. The one is, that possession of the premises is such evidence of title in Murray, that Armstrong purchased with full notice of all the rights of Murray, which notice is an implication of law arising out of possession. The other is, that the lease to Murray as far as Armstrong had any rights, was in full force at the commencement of the action of ejectment. The refusal to give the fourth instruction, presents the court below in the attitute of deciding that an action of ejectment can be maintained against a tenant in possession who is in under lease unexpired and in full force. The alienee of the premises is the plaintiff in ejectment, and his title was acquired by purchase on the 16th day of March, 1845. If then a forfeiture of the lease was worked by Murray not building the fence in time, it is no act that Armstrong could take advantage of, because it occurred before Armstrong's title or interest. 12 East, 444; Roscoe, 137. The record in this case shows that Murray remained three years in possession of the premises after time that he stipulated to make the fence, and his lessor neither gave notice to quit, declared the lease forfeited, nor made entry. These facts continue the tenancy, and leave Murray with all the rights under the lease to the termination of the term, that he would or could have had if he had built the fence in May, 1843. The want of entry by the lessor by reason of Murray's not performing his covenant to fence, keeps alive the relation of landlord and tenant. Murray having continued to occupy as tenant for three years before Armstrong acquired any interest in the demised premises. This tenancy existing, entitled Murray to six months notice to quit. From the terms of the lease, a party having no interest in the demised premises, reserves the right of entry if the fence is not built by first of May, 1843. This reservation is void. The lessor had no interest to have the fence built in 1843, if built any time before the expiration of the lease as he had to pay for it at the end of the term, it was sufficient to secure the interests and rights of the lessor, and the nearer the end of the term the fence was built, the better for the landlord.

GEYER, for Appellee.

1. The attachment, proceedings, judgment and execution, sheriff's sale and deed, vested in the purchaser all the estate of Bailey (the admitted owner) with the right to immediate possession, notwithstanding the lease, so called, under which the appellant claimed. 2. The lease, so called, does not vest any interest in the appellant. The authority to make a lease by Dillon is not proved, and the contract made is not and does not purport to be the act of Bailey, the acknowledged owner of the land. 3. The sheriff's deed relates back to the levy of the attachment when the lien of the creditor commenced; the lease, so called, was not recorded, and if of any force, was valid only between the parties and such as had actual notice thereof. Possession by Murray, is not such actual notice to the creditor as will defeat his lien even if such possession had existed at the time the attachment was levied; and neither the proclamation by Murray at the sheriff's sale, nor the possession when Armstrong purchased, nor both, will be sufficient to give priority to the unrecorded lease. Hill v. Paul, 8 Mo. R. 479; Jones v. Luck, 7 Mo. R. 551. 4. If the lease made by Dillon is to be regarded as the act of Bailey, his principal, then the conditions are for his benefit, and a breach which determines the estate revests it in Bailey. It seems to be agreed that the interest of Murray was determined on the 1st May, 1843, by the breach of the condition, and there being no waiver of the forfeiture by Bailey, the estate was revested in him with the right to immediate possession. No act of Bailey or his agent, after the levy of the attachment, could defeat the estate or surrender any right which he then had, as against the attaching creditor. 5. The notice to quit given by appellee to appellant is not a recognition of any tenancy, and still less of a tenancy under him; on the contrary it asserts that the tenancy if any ever existed, had before been determined; it neither sets up nor renders valid a void lease, nor waives a forfeiture of the term under the contract with Dillon. 6. Even if a notice to the appellant under the circumstances was necessary, it was sufficient to inform him that the forfeiture not previously waived was insisted on, and that the estate was determined. 7. The court below committed no error in refusing the instructions prayed for by the defendant below--because they assume throughout that the lease, so...