Nelson v. Kelley

• Decision Date: 23 May 1910
• Parties: NELSON v. KELLEY.
• Court: Missouri Court of Appeals

128 S.W. 832

145 Mo. App. 110

NELSON v. KELLEY.

Kansas City Court of Appeals. Missouri.

May 23, 1910.

1. INJUNCTION (§ 48) — MULTIPLICITY OF SUITS—CONTINUING TRESPASS.

Injunction will lie to restrain a continuous and harassing trespass to prevent a multiplicity of suits.

2. INJUNCTION (§ 35)—FORFEITURE OF LEASE —RE-ENTRY BY TENANT.

Where a lease provides for a forfeiture and right to enter on a violation of its terms, an entry under such provision is a forfeiture, and if possession is thereby secured and retained, it is sufficient to entitle the landlord to maintain

a suit for an injunction against repeated or continuous trespasses by the former lessee.

3. INJUNCTION (§ 47)—FORFEITURE OF LEASE —POSSESSION—RE-ENTRY.

Plaintiff purchased certain property subject to a lease containing a covenant against subletting. Defendant recognized plaintiff as his landlord, and sublet the property against plaintiff's protest, when plaintiff declared a forfeiture, and obtained and retained possession. Defendant, after the subtenant moved out forcibly came into the building and remained under an alleged attempt to take possession after the subtenant's time expired on the next day. Held, that defendant had no legal claim to the property, and was properly enjoined from interfering therewith.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Suit by William R. Nelson against James A. Kelley. Decree for complainant, and defendant appeals. Affirmed.

Joseph S. Rust and T. A. Frank Jones, for appellant. Douglass & Watson, for respondent.

ELLISON, J.

This proceeding was instituted by filing a bill for injunction to restrain defendant from trespassing upon plaintiff's property or interfering with his possession thereof. A temporary writ was granted, which was afterward made perpetual, and defendant appealed.

It appears that plaintiff bought the property, with a two-story building thereon, from Pearl Barton, and that he took the deed in the name of his agent, Ennis, who shortly thereafter deeded it over to plaintiff. It further appears that all after proceedings were conducted by plaintiff through Ennis as his agent, and we will therefore state occurrences as having transpired with or by plaintiff instead of the agent. The conveyance to plaintiff was a general warranty deed dated June 22, 1908, and it contained a provision that it was "made subject to the rights of tenants now in possession and now occupying the premises." The lease under which these tenants were holding was made to defendant by Barton on the 1st of November, 1906, for one year, and at the expiration thereof, and before plaintiff's purchase, it was renewed for a term expiring, by its own limitation, the 30th day of September, 1909. It was assigned to plaintiff on the 30th of June, 1908, a few days after he purchased the property. It contained a provision that no subletting should be made by defendant except with the consent of the lessor, and that, if there was a violation of this provision, the lessor "may, at their option, terminate the lease, and the lessees shall immediately surrender peaceable possession of the premises to the lessor, and, if they fail to do so, the lessor may take possession thereof, using such force as may be necessary." Defendant recognized plaintiff as owner and lessor of the premises by paying him rent for the months of July and August. He offered him rent for September, October, and November, and plaintiff refused to accept it on the ground that he had forfeited the lease by subletting. Defendant had sublet the premises to different parties before plaintiff's purchase, and one Bowman, a subtenant, was occupying them at the date of his purchase, June 22, 1908. But they were afterwards repeatedly sublet without plaintiff's consent, and, as stated, plaintiff refused rent offered him by defendant. The premises were occupied as a restaurant, and the subletting seems to have been accomplished by the occupying tenant selling out to a purchaser and the latter, in turn, selling to another. Bowman, who was in possession when the premises were conveyed to plaintiff, kept them until about the...