Shepard v. Martin

• Decision Date: 31 March 1862
• Citation: 31 Mo. 492
• Parties: ELIHU H. SHEPARD, Appellant, v. JOHN L. MARTIN, Respondent.
• Court: Missouri Supreme Court

31 Mo. 492

ELIHU H. SHEPARD, Appellant,

v.JOHN L. MARTIN, Respondent.

Supreme Court of Missouri.

March Term, 1862.

1. Under the act concerning Landlords and Tenants in the county of St. Louis (R. C. 1845, Appendix, p. 1101), upon a failure of payment of rent the landlord is entitled to recover the premises from the person in possession, without showing that he holds under the original tenant. If found in possession, his holding under the original tenant, or intrusion on vacant premises, is presumed. (Willi v. Peters, 11 Mo. 395, affirmed.)

2. A tenant can not dispute his landlord's title.

Appeal from St. Louis Land Court.

For statement see opinion.

N. Holmes, for appellant.

I. The plaintiff's instructions correctly declared the law of the case. (Willi v. Peters, 11 Mo. 396; Shepard v. Martin, 25 Mo. 193.)

II. Getzendauner got the actual possession of the premises sued for from the plaintiff under the lease. The recording would only affect the question of title.

Knox & Kellogg, for respondent.

There was no privity shown between defendant Martin and plaintiff to constitute a tenancy.BATES, Judge, delivered the opinion of the court.

This was a proceeding under the act concerning landlords and tenants in the county of St. Louis. The case was in this court once before, and is reported in the 25th Mo., page 193. After the case was remanded to the land court, it was there tried and judgment given for the defendant, and the plaintiff brought the case here by appeal. At the trial, the plaintiff gave in evidence a lease from himself to one Getzendauner, which recited that Getzendauner had leased from McCausland a lot of ground immediately north of said Shepard's lot and residence, it being the same lot formerly leased by McCausland to Shepard, and on which Shepard erected a one-story brick house; that Getzendauner was to pay all the ground-rent of said lot to McCausland, and was desirous of using the brick house of said Shepard on said lot, and one foot of ground immediately north of said Shepard's dwelling house, and also the brick wall of said Shepard's buildings in their whole length, all of which was on said Shepard's lot. The instrument then proceeded as follows: “Now, in consideration of the rents and conditions hereinafter mentioned, said Shepard leases to said Getzendauner, or his assigns, during the time he or they may choose to occupy the same, not exceeding twenty years, the said one-story brick buildings aforesaid, and the use of the brick wall of the said Shepard's house, and the privilege of using the said one foot of ground along the north wall of the said Shepard's wall on the north side, running back from Fourth street eighty feet. In consideration of which, said Salathiel Getzendauner, of the second part, pomises to pay said Elihu H. Shepard, or his legal representatives, the sum of two dollars per month, at the end of every three months, from the seventeenth day of March, eighteen hundred and forty-six.”

The lease bore date the 17th of March, 1846, and was not recorded. The lease from McCausland to Getzendauner, which was given in evidence by the defendant, was of the same date.

There was evidence that Getzendauner occupied the whole premises, including the McCausland lot, (on which was the one-story house mentioned in the lease from Shepard to him,) and the one foot of Shepard's land adjoining it, and the wall of Shepard's house, and that he was followed in the possession successively by McNamee, Wood and the defendant Martin, and that Martin was in possession as a tenant of S. B. Kellogg; but how or under whom Kellogg claimed does not appear. Shepard demanded rent of Martin, which was refused. There is no evidence that, before the demand of rent, Martin had any notice of the lease from Shepard to Getzendauner. The plaintiff asked two instructions, which were refused.

“1. If the jury believe from the evidence that Salathiel Getzendauner came into possession of the premises mentioned in...