Smith v. Brinker

• Citation: 17 Mo. 148
• Court: United States State Supreme Court of Missouri
• Decision Date: 31 October 1852
• Parties: SMITH, Respondent, v. BRINKER & RIPPEY, Appellants.

17 Mo. 148

SMITH, Respondent,

v.BRINKER & RIPPEY, Appellants.

Supreme Court of Missouri.

October Term, 1852.

1. A person who receives an absolute assignment of a lease is liable for the rent, whether he enters into possession or not.

Appeal from St. Louis Court of Common Pleas.

R. M. Field, for appellants, relied upon McKee v. Angelrodt, 16 Mo. Rep.

C. C. Whittelsey, for respondent. In this case, the assignment of the lease was absolute, and in that differs from McKee v. Engelrodt. The following authorities are relied upon. Eaton v. Jaques, 2 Doug. Rep. 453. Walker v. Reeves. ib. 461. Astor v. Miller, 2 Paige's Ch. R. 68. Astor v. Hoyt, 5 Wend. 603, 614. Williams v. Bosanquet, 1 Brod. & Bing. 238. Burton v. Barclay, 7 Bing. 745. Pilkington v. Shaller, 2 Vern. Rep. 374. Sparkes v. Smith, ib. 275. 1 Vesey, jr. 235. 2 Platt on Leases, 432.

RYLAND, Judge, delivered the opinion of the court.

Brinker was lessee under Smith of a tenement, reserving a certain rent. This rent Brinker covenanted to pay quarterly. Brinker took possession under the lease. Rippey, having a judgment against Brinker, had the estate and interest of Brinker in the leased premises sold by the sheriff, under execution, and bought it in himself and took a deed. The rents not being paid, Smith brought suit in ejectment against Brinker and Rippey, and in the same suit, claimed against Rippey the amount of rent accruing after his purchase of the premises under execution, and against Brinker, the whole rent. To this suit Rippey answered, setting up as a defence, that he had never entered into possession, and that Brinker, who was in possession, had never attorned to him. The court, on plaintiff's motion, struck out this answer, and, giving judgment for the plaintiff, Rippey brings his appeal to this court.

1. The appellants' counsel relies, for reversing the judgment of the court below, on the case of McKee v. Angelrodt, decided by this court at its last term. In that case, the lease was assigned by way of mortgage; “it was a mere security for the payment of money; the assignees never took possession; it never entered into the heads of the assignees that the mortgage to them, in order to secure the money due to them, made them liable to pay the rent for the lease. We therefore hold, that possession in the assignee is necessary, in order to create a liability to pay rent; that the assignee must be in a situation to receive the benefits, before he can be made to suffer the burden. Possession is ...