Orchard v. Wright-Dalton-Bell-Anchor Store Co.
| Decision Date | 02 March 1915 |
| Citation | 175 S.W. 884,264 Mo. 554 |
| Parties | GEORGE C. ORCHARD, Appellant, v. WRIGHT-DALTON-BELL-ANCHOR STORE COMPANY and MOLLIE KNIGHT |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. John W McElhinney, Judge.
STATEMENT.
Respondent Mollie Knight, formerly Kraemer, on the 12th of March, 1898 executed a twenty-year lease on a certain parcel of ground in Poplar Bluff, Missouri, of which she was the owner in fee, to Antonio Saracini at a rental of ten dollars per month. The lessee took possession and held the premises until his death August, 1900, leaving a wife and two children, to whom he devised his personal and real estate in equal parts, after bequeathing his cash on hand, stock, implements, etc., to his wife, whom he made the executrix of his will without bond and who qualified and entered upon her duties as such, and in September, 1900, filed an inventory including the aforesaid leasehold.
On the 12th of April, 1901, she conveyed her interest in said leasehold to George C. Orchard (plaintiff) and thereupon two tenants of a building on the premises attorned to Orchard. On the 3rd day of May, 1901, Mollie Knight brought unlawful detainer against Orchard and his two tenants, claiming that the leasehold had been forfeited for non-payment of the taxes, which under the terms of the lease were a part of the rent reserved. This cause was determined against the right to forfeit, for the reasons given by the St. Louis Court of Appeals in Knight v. Orchard, 92 Mo.App. 466.
Pending this suit, and prior to its final disposition, Mollie Knight leased the premises to the Store Company, which is joined as a defendant with herself in the present action of ejectment brought by George C. Orchard. This case was also heard on a former appeal to this court, which may be examined for a full statement of facts and rulings on the questions then presented. That was an appeal by the present plaintiff against the present defendants and was reversed and remanded, after the court had passed upon all the questions and their ramifications presented by the record, because of the failure of appellant to present a "definite theory" of his rights, or those of the widow under whom he claimed, and in view of the uncertainty as to whether the leasehold in suit was the one referred to in the will of Saracini. Wherefore, the court ordered a retrial in conformity with the views expressed in that opinion. [Orchard v. Store Co., 225 Mo. 414-466.]
Upon the questions thus relegated, the case has been retried, after an amendment of the pleadings and the presentation of evidence tending to show that the leasehold involved in this action was not mentioned in the will of Saracini, and after a change of venue to St. Louis county has resulted in a judgment against the plaintiff, from which he has again duly appealed to this court.
Reversed and remanded.
Lew R. Thomason and James Orchard for appellant.
(1) A leasehold estate, whether it be for twenty or for any other number of years, is personal property. Orchard v. Store Co., 225 Mo. 414. (2) The devise of real estate by the deceased husband to the widow, does not preclude her from sharing in the personal estate of her deceased husband of which he dies intestate; and no election or renunciation of the will is necessary. R. S. 1909, sec. 349; Hayden v. Hayden, 23 Mo. 398; Haniphan v. Long, 70 Mo.App. 352; Buford v. McCune, 49 Mo. 546; Martin v. Norris, 91 Mo. 465; Brown v. Tucker, 135 Mo.App. 598; Sparks v. Dorrell, 151 Mo.App. 173; Eggers v. Eggers, 225 Mo. 116; Zook v. Welty, 156 Mo.App. 712. (3) The defendant Mollie Knight (nee Kraemer), having executed and delivered a valid lease to the premises in controversy, to Antonio Saracini, which was in full force and effect, her subsequent attempted lease of the same premises, to her codefendant herein, is void and of no effect. Steel v. Culver, 158 Mo. 138. (4) The contract entered into by the plaintiff Orchard with the defendant store company on July 19, 1901, and the possession of the store company under said contract, whether construed as a lease in praesenti or as an agreement to lease in futuro creates the relation of landlord and tenant, and the store company as the tenant of the plaintiff either for a term of years or at will, cannot dispute the plaintiff's title. The contract fixes the date of the commencement of the term, the expiration of the term, the amount of the rent, and gives the right of immediate possession. Where the contract leaves nothing to be done, it passes a present estate. Johnson v. Ins. Co., 46 Conn. 92; Coin v. Feiner, 16 N.Y.S. 203; Crow v. Hildrith, 39 Cal. 618; Shoe Co. v. Gorman, 50 Mo.App. 642. A tenant at will, equally with a tenant from year to year, is estopped and precluded from denying his landlord's title. Town v. Butterfield, 97 Mass. 105; Coburn v. Palmer, 8 Cush. (Mass.) 124; Cobb v. Arnold, 8 Metc. 398; Moore v. Beasley, 3 Ohio 294. (4) An action of ejectment may be maintained for the recovery of the possession of the premises in all cases, where the plaintiff is legally entitled to the possession thereof. R. S. 1909, sec. 2382; Evans v. Kunze, 128 Mo. 670. (5) The application of the principle that plaintiff in ejectment must recover upon the strength of his own title, and not the weakness of the title of his adversary, is not to be understood as requiring the plaintiff to make out a perfect title; but it only requires that the plaintiff shall exhibit such title or right to possession as will put the defendant to the proof of a title or right superior to that of a mere naked possession. Hartley v. Farrell, 9 Fla. 373; Burt v. Panjaud, 99 U.S. 180; Matney v. Graham, 59 Mo. 190; Morfleet v. Russell, 64 Mo. 176; Duncan v. Able, 99 Mo. 188; Rogers v. Mays, 84 Mo. 520.
E. R. Lentz and Nagel & Kirby for respondents.
(1) This case has been once before in this court and practically every question now presented has been passed upon and the law declared thereon by this court, and in the retrial in the court below, the ruling of this court has been strictly followed. The decision of this court on the former appeal is the law of this case upon all questions which were there passed upon. Orchard v. Store Co., 225 Mo. 414; Chambers v. Smith, 30 Mo. 156; Bank v Taylor, 62 Mo. 338; Keith v. Keith, 97 Mo. 223; Com. Co. v. Bank, 35 Mo.App. 472; Wayne v. Railroad, 35 Mo.App. 567; Railroad v. Bridge Co., 215 Mo. 286; Merriwether v. Knapp & Co., 224 Mo. 617. (2) So far as plaintiff's right to recover against the Store Company is concerned, the only question left open by the former decision in this case, was the question of fact whether the leasehold here in controversy was the same leasehold as that which was devised to Michael Saracini, by the will of his brother, Antonio, or whether Antonio Saracini died intestate as to the leasehold in controversy. Since the fact that he died intestate as to the leasehold is admitted in the record and proved by uncontradicted facts this court has already held that plaintiff had and has no title, and cannot recover. Orchard v. Store Co., 225 Mo. 464. After the case was reversed and remanded, the plaintiff filed an amended replication to the answer of the defendant, the Wright-Dalton-Bell-Anchor Store Company, in which it was admitted that Antonio Saracini died intestate as to the leasehold in question. They also introduced Michael Saracini as a witness, who testified that his brother held two leases from Mollie Kraemer; that he (Michael) was in possession of one of those leases, which is not in controversy here, and that the other of the said leases is the one in controversy. The trial court found as a fact that Antonio Saracini died intestate as to the leasehold in question. Consequently the former decision of this court is res adjudicata upon every question here presented, and precludes plaintiff from recovering. (3) The will of Antonio Saracini devises lands to his widow and makes no provision that this devise is to be in addition to her dower interest. The statute provides that if any testator shall by will pass any real estate to his wife, such devise shall be in lieu of dower, out of the real estate of her husband whereof he died seized, or in which he had an interest at the time of his death, unless the testator by his will otherwise declared. R. S. 1909, sec. 360; Kaes v. Gross, 92 Mo. 647; Schorr v. Etling, 124 Mo. 42; Doherty v. Barnes, 64 Mo. 159. This court has already held in this case that the leasehold in question was an interest in the land covered thereby, and the widow's right to dower therein was barred by the will which devised other real estate to her. Orchard v. Store Co., 225 Mo. 405. (4) The statute further provides that in the case mentioned in section 360 the wife shall not be endowed in real estate whereof her husband died seized, or in which he had an interest at the time of his death, unless she shall by writing duly executed and acknowledged, as in cases of deeds for land, and filed in the office of the court in which the will is proved and recorded, within twelve months after the proof of the will, not accept the provisions made for her by said will. R. S. 1909, sec. 361. There is no pretense here that any such renunciation of dower was ever made, and by the very terms of this statute the widow is not endowed of this leasehold, and this court has already so held. Orchard v. Store Co., 225 Mo. 465. (5) In ejectment the plaintiff can only recover upon the strength of his own title, and not upon the weakness of the title of the defendant. McVey v. Carr, 159 Mo. 651; Prior v....
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