Redman v. Perkins

• Decision Date: 05 November 1906
• Citation: 98 S.W. 1097,122 Mo. App. 164
• Parties: REDMAN v. PERKINS.
• Court: Missouri Court of Appeals

98 S.W. 1097

122 Mo. App. 164

REDMAN v. PERKINS.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

Rehearing Denied January 14, 1907.

1. FORCIBLE ENTRY AND DETAINER—STATUTORY REMEDY—OBJECT.

The object of the statute of forcible entry and detainer is to preserve the peace by preventing those not in the actual possession of real estate from resorting to physical force to gain possession, and an action will lie against one succeeding in ousting his adversary from possession, irrespective of the question as to what party has the stronger title, and all that need be shown to sustain an action is that plaintiff was in the actual posession of the property and was forcibly dispossessed by defendant.

2. SAME—FORCIBLE ENTRY—WHAT CONSTITUTES.

Unlawful detainer presupposes that defendant obtained possession without force, but wrongfully refuses to surrender it on demand to the one having the legal right, which refusal is in its nature an exhibition of force, and is constructively a forcible entry for which an action will lie under the statute.

3. SAME—POSSESSION TO SUPPORT ACTION— SUFFICIENCY.

Where a tenant was the tenant of plaintiff in forcible entry and detainer proceedings, the possession of the tenant was as to strangers possession by plaintiff, and the tenant's abandonment of the premises during the tenancy did not oust plaintiff from possession, so that when a third person entered the premises on the tenant's abandonment they were in the actual possession of plaintiff, entitling him to maintain the proceedings, though he was not present, and did not appear until after entry by the third person.

4. SAME—BURDEN OF PROOF.

A plaintiff in forcible entry and detainer who relied on possession through another as his tenant had the burden of proving that the latter was his tenant.

5. SAME—POSSESSION TO SUSTAIN ACTION— SUFFICIENCY.

Plaintiff, with knowledge that R. was in possession of premises as the tenant of M., entered into a contract of lease of the premises with R. Plaintiff exercised some acts of ownership over the premises after the execution of the lease to R., such as repairing fences, preparing land for plowing, and receiving a portion of the crop raised. Held, that plaintiff did not have such possession as entitled him to maintain forcible entry and detainer proceedings; for, under the express provisions of Rev. St. 1899. § 4112, the execution of the lease by him to R. was without effect on the possession of M.

Appeal from Circuit Court, De Kalb County; A. D. Burnes, Judge.

Action by William M. Redman against John Perkins. From a judgment for defendant, plaintiff appeals. Affirmed.

Hewitt & Hewitt, for appellant. Wm. M. Fitch and J. C. Landis, Jr., for respondent.

JOHNSON, J.

Plaintiff sued defendant before a justice of the peace to recover possession of a farm in De Kalb county. In the complaint filed, it is alleged that, on and before March 1, 1905, plaintiff was in the lawful and peaceable possession of the land described, and that on the date mentioned "defendant wrongfully and without force by disseisin, obtained possession of said premises, and has ever since held, and still holds, possession thereof wrongfully and unlawfully." A trial of the cause in the circuit court on appeal resulted in a judgment for defendant, and plaintiff appealed.

Plaintiff's evidence tends to show that on February 6, 1903, plaintiff, claiming to be the owner of the land, leased it in writing to J. E. Rhodes for the year beginning March 1, 1903. Rhodes agreed to pay as rental $25 in money and one-half of the corn grown, and plaintiff "reserved one-half of the stalk field." The lease was signed by both parties. Rhodes occupied and tilled the farm during that year, paid the rent as agreed, and, in February, 1904, agreed orally with plaintiff to rent the farm for another year on the same terms the written lease provided for the year about to close. He continued in possession during the ensuing year and raised a crop of corn, but in November, 1904, refused to give plaintiff half of the corn and stalks, on the ground that Mr. Fitch, who was acting as the agent of Mr. E. H. Lahrman, claimed the farm was owned by his principal, and demanded that Rhodes recognize Lahrman as his landlord, and pay to him the rent for that year. Rhodes, professing unwillingness to choose between the contesting claimants, placed the landlord's half of the corn in a pile, and in effect forbade plaintiff to take possession of corn or stalks pending the dispute over the title. About February 25, 1905, a few days before the termination of his tenancy, Rhodes, who had been living on the place, moved out, and defendant, Perkins, at the same time moved in. Plaintiff appeared while this change of possession was in progress, and ordered defendant to desist, but was disobeyed, and defendant completed his occupation of the place, and continued to hold it. Plaintiff in a few days made written demand on defendant for the possession of the premises, and, the demand being refused, this suit followed. Plaintiff admitted that when he made the first contract with Rhodes, he knew the latter was then in possession of the premises as a tenant, and, though he claimed he did not know whose tenant Rhodes was, he did know that the landlord of Rhodes was a stranger to the title under which plaintiff asserted his right to possession. The evidence introduced by defendant shows this state of facts.

Rhodes first acquired possession of the farm about March 1, 1902, under an oral letting made by the agent of Oliver Mills who was then in possession under claim of title. The agreement provided that Rhodes should have the place for one year beginning March 1, 1902, for which he was to pay a money rental of $140. He gave his note for this amount to Mills, entered into possession, raised a crop, paid the note as agreed, and, in February, 1903, agreed with the agent of Mills to rent the farm for another year, and to give his note for $140 in payment of the rent for that year. Shortly after this, but before the 1st of March, and while he was holding as the tenant of Mills, Rhodes, without the knowledge or consent of Mills, was prevailed on by plaintiff to lease the place from him under the representation that he had bought the farm. Rhodes did not execute and deliver to Mills his note for $140 in payment of the rent for the ensuing year, nor did he pay any rent to...