Shull v. Cummings

• Decision Date: 03 November 1913
• Citation: 161 S.W. 360,174 Mo. App. 569
• Parties: SHULL v. CUMMINGS.
• Court: Missouri Court of Appeals

161 S.W. 360

174 Mo. App. 569

SHULL v. CUMMINGS.

Kansas City Court of Appeals. Missouri.

November 3, 1913.

Rehearing Denied December 1, 1913.

1. PARTITION (§ 9)—VOLUNTARY PARTITION— INTEREST OF HUSBAND OF GRANTEE.

Where land belonged to a married woman and her brother as tenants in common, a partition deed from the brother to her and her husband was not a conveyance of any title to her husband, or even to her, but was a mere setting off of the boundaries to the land she owned by inheritance.

2. HUSBAND AND WIFE (§ 25)—LEASE—RECOGNITION.

Where a husband leased property of his wife in which he had no interest, and the lessee took and held possession for nearly four years during which the wife knew of the lease, and that her husband was collecting the rent, up to the time of their divorce, in her petition for which she stated that her husband had taken control of the property and asked that he be required to account to her, and where she afterwards sold the land to an uncle discounting the consideration on account of the lease and again inherited it from the uncle, there was such a recognition of the lease that the lessee became her tenant.

3. HUSBAND AND WIFE (§ 138)—WIFE'S SEPARATE PROPERTY—CONSENT TO USE BY HUSBAND.

Though a husband, who leased his wife's property, did not have her consent in writing as the statute requires, there is no reason why, after her husband's death, or after divorce, she may not ratify the lease.

4. LANDLORD AND TENANT (§ 120)—TENANT AT WILL—NOTICE TO QUIT.

Under the express provisions of R. S. 1909, § 7883, a tenant at will is entitled to 30 days' notice to quit.

5. LANDLORD AND TENANT (§ 306)—LEASE— NOTICE TO QUIT.

Where the petition alleged merely a right to possession in plaintiff, an answer of general denial was merely a denial of such right of

possession, and was sustained by a failure to give notice to quit.

6. APPEAL AND ERROR (§ 837) — RECORD — FINDINGS OF FACT.

Where the bill of exceptions did not contain the evidence taken, but did contain finding of facts, made by the court at the request of the parties without objection, such findings might be considered to determine whether the conclusions of law drawn therefrom were proper.

Appeal from Circuit Court, Buchanan County; W. K. Amick, Judge.

Action by Katherine Shull against Claude E. Cummings. Judgment for plaintiff, and defendant appeals. Reversed.

C. V. Hickman, of St. Joseph, and H. K. White, of St. Joseph, for appellant. W. S. Herndon, of Plattsburg, for respondent.

ELLISON, J.

This is an action for the possession of certain farm lands in Buchanan county and rents thereof. The judgment in the trial court was for the plaintiff for the possession and for $256.82 as damages and $33.50 monthly value of rents. The title to the property is not questioned; the controversy relates to defendant's rights as a tenant under a certain lease. At the inception of the controversy, plaintiff was the wife of A. P. Shull, but before its close she was divorced from him in the year 1909. The land formerly belonged to plaintiff's father, and at his death was inherited by her and her brother John. When the father's land was partitioned, the part now in controversy was allotted to plaintiff. Then she, in January, 1910, sold it to her uncle Francis R. Allen, and he, in the following December, brought this action against defendant; but before it was reached for trial he died, leaving plaintiff and her brother John as his sole heirs, and they divided the lands by their respective deeds, John's deed being made to her and her husband. But notwithstanding such joinder of the husband as a grantee, the land in controversy by force of the law (as we shall presently see) again became plaintiff's. Then she was substituted for her deceased uncle as party plaintiff and filed an amended petition, to which defendant filed a general denial by way of answer, upon which pleadings the case went to trial by the court without a jury.

It seems the plaintiff's husband, before they were divorced, thought he had an interest in the land, perhaps an estate by the entirety, and he made the lease to defendant for five years by reason of which the...