Shields v. Stillman

• Decision Date: 31 March 1871
• Citation: 48 Mo. 82
• Parties: JAMES SHIELDS, Respondent, v. MARY F. STILLMAN AND ADA CLIFFORD, Appellants.
• Court: Missouri Supreme Court

48 Mo. 82

JAMES SHIELDS, Respondent,

v.MARY F. STILLMAN AND ADA CLIFFORD, Appellants.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

Ewing & Holliday, and Pattison, for appellants.

I. The plaintiff did not leave the right of possession to the premises in controversy at the time of bringing this suit for possession. The only interest the plaintiff ever had in the premises in controversy was in the right of his wife. A valid lease of the wife's real estate, for any definite time, must necessarily have been made by both husband and wife. The joining of the husband and wife was essential to the full enjoyment by the husband of his marital interest in the property. This act of the wife, in giving him the full enjoyment of his estate in the property, did not thereby enlarge his estate and extend it beyond her death, to the end of the term. No such estate is known to the law. (Hill v. Sanders, 2 Bing. 112.)

II. This suit was for possession alone, and not for rent. In proceedings under a landlord's summons, prior to the taking effect of the General Statutes of 1865, no judgment could be rendered in this State for rent. It was necessary for the plaintiff, however, ever under the law of 1855, to state in his affidavit for the summons the exact amount of rent due, although he could only recover judgment for possession. (Vaughn v. Locke, 27 Mo. 290.) The section of the General Statutes of 1865 (p. 741, § 33) which gives the substance of what the plaintiff's affidavit shall contain, is exactly similar to the section of the law of 1855 (R. C. 1855, p. 1018, § 33). Section 35, Gen. Stat. 1865 (p. 742), authorizes the justice not only to give judgment for possession, but “also his debt for the amount of rent then due,” if that amount does not exceed the jurisdiction of the justice. The section then closes with this proviso: “And provided further, that, if the plaintiff so elects, he may sue for possession alone, without asking for a payment of the rent due.” If he does n elect to sue for possession alone, must he not, in the words of the act, “ask for a payment of the rent due?” In this suit no payment for the rent due was asked.

III. It was error in the Circuit Court to render judgment for an amount of rent greater than within the jurisdiction of a justice. The jurisdiction of an appellate court, in cases that come up from a court of limited jurisdiction, is exactly co-extensive with that of the inferior court from which the appeal was taken. (Bridle v. Grau, 42 Mo. 359.)

Cline, Jamison & Day, for respondent.

I. This suit was properly instituted in the name of the husband, who was the surviving lessor. The rent was payable to him, and the term, after the death of his wife, inured to his benefit. (Gen. Stat. 1865, p. 741, §§ 29, 30, 32, 33.)

II. The judgment entered by the justice should be for the possession of the leased property and the rent due, if it shall not exceed the jurisdiction of the justice. (R. C. 1855, p. 742, § 35; Ridgley v. Stillwell, 28 Mo. 400.)

III. The premises belonged to Mrs. Shields, with full power to sell, lease, dispose of and appoint the use to whomsoever she saw fit. And by this lease, and the reservation of the rents to her husband for the term of two years, she made him her appointee, and appropriated the estate to his use and benefit for the full term of the lease. The notes being made payable to Shields and wife in law, made them payable to him alone, and no one else; and in no event could the remainder attach until the end of the lease, which was an appropriation of the estate to the husband--the end of the term.

IV. The judgment was properly entered against Clifford and her sureties on the appeal bond. (Gen. Stat. 1865, p. 725, § 23.) The judgment of the justice was regular in so far as it awarded restitution of the premises and judgment for the rent of $200 then due, that sum being within the jurisdiction of a justice of the peace, and the rent that accrued afterward was merely incident to the appeal; and the continued occupancy of the premises by the wrongful act of the defendant could in nowise oust the Circuit Court of its jurisdiction of the entire cause.

CURRIER, Judge, delivered the opinion of the court.

This suit was commenced before a justice of the peace to recover possession of certain premises let by deed of lease by the plaintiff and his former wife to one of the defendants, for a term of two years, commencing May 15, 1867, and ending May 15, 1869. The proceeding is founded upon the statute in relation to landlords and tenants (Gen. Stat. 1866, p. 741, §§ 33-5). The defense, in substance, is that the plaintiff's interest in the premises, and the rents reserved by the lease, terminated prior to the accrual of the rent alleged to be in arrear, and that, consequently, no right of action has accrued to him to recover either the rents or possession of the leased premises.

It appears that one Whittier held the legal title to the premises in question, in trust for the sole use and benefit of the plaintiff's wife--the rents, issues and profits being subject to her control and disposition, apart from and independent of her husband. Mrs. Shields intermarried with the plaintiff subsequent to the execution of the deed vesting in Whittier the legal title to the property, in trust, as above stated. She died August 17, 1868, leaving the plaintiff surviving her. The rent, stated in the complaint to be in arrear, accrued between the 15th of September, 1868, and the 15th of October of the same year, being two months, at $100 each.

The deed of lease referred to, under which the rent is claimed to have accrued, was executed by Shields and wife subsequent to their intermarriage. The rent reserved was payable in monthly installments of $100 each, each month's rent being embodied in a promissory note, signed by the lessee and payable to the order of the lessors, namely, “Ellen M. and James Shields.”

Mrs. Shields died without issue of the marriage, leaving as her only child and heir at law a daughter by a former husband; her whole estate thereupon descending immediately to this daughter, including the rents reserved by the aforesaid lease, as the defendants claim. The plaintiff, however, insists that the rents belong to him as the appointee of his wife. His proposition is that the the notes, being made payable to him and his wife, in law, were made payable to him alone, and that the rents were thus appropriated to his use by his wife's appointment.

I do not concur in that proposition. The appointment was not to the husband alone, but to the husband and wife jointly. The transaction evinces a purpose on the part of Mrs. Shields to appropriate the rents to her own use, as well as to the use of her husband. The property belonged to her as her separate estate, and she was empowered to dispose of it as she pleased. She joining her husband in the lease, granted to the lessee an estate for two years, reserving rent in the form of notes payable to the joint order of herself and husband. These notes were neither real estate nor personal chattels in possession, but choses in action, and the surviving joint payee took them by survivorship.

“An executory contract,” says Robertson, J. (10 Bosw. 314), “by its mere form survives to the wife when made in her name or the joint names of herself and husband.” The converse of this proposition...