Shacklett v. Cummins

• Decision Date: 12 March 1917
• Docket Number: No. 18498.,18498.
• Parties: SHACKLETT v. CUMMINS.
• Court: Missouri Supreme Court

193 S.W. 562

270 Mo. 496

SHACKLETT v. CUMMINS.

No. 18498.

Supreme Court of Missouri. Division No. 1.

March 12, 1917.

Plaintiff's Motion to Modify Judgment, and Defendant's Motion for Rehearing March 30, 1917.

[193 S.W. 563]

Appeal from Circuit Court, Sullivan County; Fred Lamb, Judge.

Action by Jacob K. Shacklett against Sherman Cummins. There was judgment for defendant, and plaintiff appealed to the Kansas City Court of Appeals (178 Mo. App. 309, 165 S. W. 1145), which reversed, certifying the case to the Supreme Court. Judgment of the circuit court reversed.

In the summer of 1911, plaintiff, residing in Scotland county, Mo., bought of one Dodson a farm of 240 acres, lying in Sullivan county. It was then in possession of defendant under a lease from Dodson for a year ending the following 1st of March, 1912. At the end of said lease defendant refused to quit the premises, and this action of unlawful detainer was instituted.

The judgment in the circuit court was for the defendant. The latter claims a rightful possession by reason of a verbal renting from plaintiff entered into the latter part of August, 1911, shortly after plaintiff bought from Dodson, whereby he was to have the land for a year from the expiration of his lease aforesaid, viz. from the 1st of March, 1912, up to the 1st of March, 1913; he to plow about 35 acres of sod in the fall of 1911, and give a part of the crop when matured.

The case was duly appealed to the Kansas City Court of Appeals by plaintiff, and the latter court, in an opinion by Judge Ellison, reported in 178 Mo. App. 309, 165 S. W. 1145, in which all the members of said court concurred, reversed the case, and certified it to this court, on the ground that said decision was in conflict with the decision of the Springfield Court of Appeals in Winter v. Spradling, 163 Mo. App. 77, 145 S. W. 834. Judge Ellison's opinion, supra, was filed April 6, 1914. The opinion of the Springfield Court of Appeals, in Starks v. Manufacturing Co., 182 Mo. App. 241, 167 S. W. 1198, was not filed until June 27, 1914, and hence the decision of said court in Winter v. Spradling, 163 Mo. App. 77, 145 S. W. 834, contained its latest utterances upon the subject under consideration, when the present case was transferred to this court.

In Winter v. Spradling, plaintiffs leased certain lands to defendant for a period of three years, ending March 1, 1911. Defendant went into possession and continued in possession beyond the expiration of that lease, and was still in possession when the action for unlawful detainer was instituted. Defendant claimed that in July, 1910, he made an oral agreement with Winter, the owner of said land, by the terms of which he leased the land for another year, to begin at the expiration of said written lease on March 1, 1911, and to expire March 1, 1912. As part of the terms of said verbal lease, certain improvements were to be made on the land for which plaintiff was to furnish the material and defendant was to perform the labor, and that part of those improvements were made as agreed. Defendant also plowed eight acres of ground preparatory to sowing wheat. After this was done, plaintiffs, on August 15, 1911, notified defendant that they wanted possession at the expiration of the written lease, and nothing further was done in relation to the oral lease. Suit was filed March 4, 1911, before a justice of the peace, and the cause removed to the circuit court on certiorari. Judgment was rendered for defendant, and the plaintiffs appealed to the Springfield Court of Appeals. The latter reversed and remanded the cause, and held that plaintiffs were entitled to recover. The conclusion reached, as to the disposition of the case, was in accord with the views expressed by Judge Ellison in the case at bar, but certain principles of law are announced in the Winter-Spradling Case, which are in conflict with the ruling of the Kansas City Court of Appeals in this case, and likewise in conflict with the rulings of both divisions of the Supreme Court.

Judge Cox, in the Winter Case, on page 83 of 163 Mo. App., page 835 of 145 S. W., said:

"If defendant had been out of possession when the oral contract of lease was made, and were he now seeking to hold possession as a tenant from year to year, it is clear that he would have to show that the lessor put him in possession under the oral contract of lease. He could not call to his aid a possession taken without the lessor's knowledge or consent. Neither can he in this case call to his aid an act of his own done without the lessor's knowledge or consent and thereby change the character of his possession. While there would be nothing inconsistent in defendant holding possession under both the written and verbal leases at the same time, yet, when the evidence that he was holding under both consists of his own acts, it would be manifestly unjust to plaintiffs to bind...