Pentz v. Kuester

• Decision Date: 31 October 1867
• Citation: 41 Mo. 447
• Parties: HENRY PENTZ, Respondent, v. FRANK KUESTER, Appellant.
• Court: Missouri Supreme Court

41 Mo. 447

HENRY PENTZ, Respondent,

v.FRANK KUESTER, Appellant.

Supreme Court of Missouri.

October Term, 1867.

Appeal from Sixth District Court.

T. W. Cunningham and Voullaire, for appellant.

I. A tenant is not estopped from showing that the title of his landlord is extinguished or transferred, and that he holds under the purchaser as his tenant, and may show that the title under which he entered has expired or been transferred--G. S., p. 742, §§ 38, 39 & 40; 6 Wend. 670; 3 Hemp. 16; 33 Mo. 292 & 105; 10 Humph. 49; Tay. Land. & Ten. § 629; Smith's Land. & Ten. p. 296, note.

II. A sale under proceedings of partition is a sale by the parties themselves--25 Mo. 575; 33 Mo. 105; 3 Ired. Eq. 347.

III. The title to the property sold and the possession are vested in the purchaser by virtue of the decree of the court and the deed from the sheriff--1 Hill. on R. Prop. 606.

IV. Derivative title from Pentz, the respondent, is admissible in evidence-- G. S. p. 733, § 40; Young v. Smith, 28 Mo. 66.

V. Pentz, the respondent, being a party to the proceedings in partition, is estopped both in law and in equity from setting up any right to the property sold, or to the possession thereof--G. S. p. 614, § 34; 14 Mo. 153; Forder v. Davis, 38 Mo. 115.

The several statutes of partition and landlord and tenant in pari materia, relating to the same subject, are to be taken together and compared in construing them, because they are considered as having the same object in view and acting upon one system--4 Kent Com. 463.

Wm. A. Alexander & E. A. Lewis, for respondent.

I. It is a well settled principle of law, that the tenant cannot dispute the title of his landlord--Ad. on Eject. 276, and cases cited.

II. It is equally as well settled, that in proceedings of forcible entry and detainer, title or right of property cannot be inquired into--R. C. 1865, p. 732, § 26; Stone v. Malot, 7 Mo. 158, 377; Alexander v. Wescott, 37 Mo. 108.

HOLMES, Judge, delivered the opinion of the court.

It appears that the plaintiff leased the premises in dispute to the defendant for one year, and gave him possession. But before the expiration of the lease, all the right, title and interest of the plaintiff in the land had been sold and conveyed to one Lewis Brecker, under a judgment and order of sale in partition in a suit in which the lessor was a party plaintiff, claiming as a tenant in common with the other parties; and upon the expiration of the term, the lessee took a new lease from the purchaser at the partition sale, and continued to hold the possession. The plaintiff brings this action of unlawful detainer against him under the statute, alleging that he was holding over willfully and without force--Gen. Stat. 1866, ch. 187, § 3.

For his defence, the defendant relied upon the record of the partition suit, the sheriff's deed under the order of sale, and his lease from the purchaser. This evidence was introduced for the purpose of showing a derivative title from the lessor himself since the date of the lease.

The court instructed the jury for the plaintiff to the effect that the tenant could not dispute the title of his landlord, nor the court inquire into the matter of title, in this form of action. This was doubtless so far correct as the general rule, but it did not cover the whole case made. It did not meet the defence.

An instruction was refused for the defendant to the effect that, upon the evidence offered to prove a derivative title from the lessor to the defendant, the plaintiff was not entitled to recover.

Under the provisions of the statute (G. Stat. 1866, ch. 187, § 36-40) this evidence was admissible, and the instruction should have been given. By this section heirs, devisees, grantees, and assigns are entitled to this remedy in the same manner as the ancestor, devisor, grantor, or assignor, and evidence of proof of rights under derivative titles since the demise is made admissible in this action. These provisions were first enacted in the revision of 1855. The older decisions bearing upon this point can no longer govern this question. Holland v. Reed, 11 Mo. 605; Picot v. Masterson, 12 Mo. 403. That a grantee of the plaintiff who had by his own act and deed made the grant could show such conveyance of the lessor's title and right of possession to himself, and maintain this action against the lessee holding over wilfully and without force as against him, there can be no doubt. There would be neither reason nor justice in requiring the lessee in such case to submit to an action of unlawful detainer before acknowledging the right of such grantee to the possession of the premises. His attornment to him must be considered as lawful and as made with the consent of the landlord.

Though the tenant could not dispute the title of the landlord, nor set up a paramount title or an adverse possession against either the granton or grantee, nor the court inquire into the matter of title in general, it was still competent for the defendant, under the statute, to show that the plaintiff's title and right of possession had been transferred to him self since the demise. These sections of the statute have so far assimilated this proceeding to actions for rent or in ejectment, in which it was always allowable for the tenant to show that the lessor's title had expired, or had been extinguished, or transferred to himself, since the date of his lease-- Jackson v. Rowland, 6 Wend. 670; Bowser v. Bowser, 10 Humph. 49; Binney v. Chapman, 5 Pick. 124; Tay. Land & Ten. § 629.

The proceedings in partition were binding and conclusive upon all parties to the record, and upon all those holding under them afterwards; and the plaintiff was estopped from denying that his title and right of possession had been extinguished by the transfer of both to the purchaser at the partition sale-- Owsley v. Smith, 14 Mo. 153; Forder v. Davis, 38 Mo. 115. It was a sale by act of the parties themselves as well as by the judgment of the law, and not a sale in invitum like an ordinary sheriff's sale under execution. The partition was had upon the petition of this plaintiff; and the sheriff's deed in partition must stand upon the same footing here as if it had been a voluntary conveyance of the title by the plaintiff himself. The purchaser will be considered as his grantee, within the meaning of the statute.

The matter did not iuvolve an investigation of the merits of the title, but only the derivation and transfer of the lessor's title to the lessee, the plaintiff's right to recover the possession as a matter of fact, and his right to maintain this action. In such case the withholding of the possession, by the defendant was neither wilful nor unlawful.

This position is not really inconsistent with the decisions which hold, under the former statutes, that this action could not be maintained by ...