Stone v. Wandling

• Decision Date: 12 March 1925
• Docket Number: 24016
• Citation: 270 S.W. 315,307 Mo. 160
• Parties: ALBERT S. STONE and JOHN S. BOYER v. G. B. WANDLING et ux., Appellants
• Court: Missouri Supreme Court

270 S.W. 315

307 Mo. 160

ALBERT S. STONE and JOHN S. BOYER v. G. B. WANDLING et ux., Appellants

No. 24016

Supreme Court of Missouri

March 12, 1925

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Reversed.

Alpha N. Brown and Charles M. Miller for appellants.

(1) The trial court erred in refusing appellants' peremptory instructions to find for appellants. (a) Because unlawful detainer can only be maintained where the relation of landlord and tenant exists, and no such relation existed between respondents and appellants in this case. Whiteside v. Oasis Club, 162 Mo.App. 504; Swaby v. Boyer, 221 S.W. 413; Sudmeyer v. Meyer, 237 Treece, 184 Mo.App. 135; Andrae v. Heinwitz, 19 Mo 311. (b) Because the written memorandum between appellants and Mrs. J. H. Gallop was an irrevocable license for appellants to occupy the premises for a period of two years from September 25, 1920, and respondents had no right to disturb their occupancy of the premises thereunder. 1 Tiffany on Real Property, sec. 304, p. 679; White v Maynard, 111 Mass. 250; House v. Montgomery, 19 Mo.App. 170; Gibson v. Association, 33 Mo.App. 165; Baker v. Railroad, 57 Mo. 265; Railroad v. Railroad, 222 Mo. 461; Shaw v. Caldwell, 115 P. 949. (2) The trial court erred in excluding evidence as to the lack of mental capacity of the grantor, Almeda J. Gallop, to execute and make delivery of the alleged deed, and all the circumstances surrounding the alleged execution and delivery of the alleged deed, and refusing appellants' offer of proof thereof. Gillett v. Mathews, 45 Mo. 307-308; Lehnen v. Dickson, 148 U.S. 71; Pullis v. Kalb, 62 Mo.App. 27; Tucker v. McClenney, 103 Mo.App. 318, 322; Young v. Smith, 28 Mo. 65; Pentz v. Kuester, 41 Mo. 447; Binkerhoff v. Nelson, 13 Johns. (N. Y.) 340. (3) The trial court erred in refusing to permit appellants to show what repairs were made on the house and the cost thereof to them and the expense they had been put to in breaking up their home and moving to the Gallop home, and denying the offer of proof thereof. 1 Tiffany on Real Property, sec. 304, p. 679; White v. Maynard, 111 Mass. 250; House v. Montgomery, 19 Mo.App. 170; Gibson v. Association, 33 Mo.App. 165; Baker v. Railroad, 57 Mo. 265; Railroad v. Railroad, 222 Mo. 461; Shaw v. Caldwell, 115 P. 949. (4) The trial court erred in doubling the damages and the value of the monthly rent under the alleged authority of Sec. 3012, R. S. 1919, and the said statute, if applicable to this case, is unconstitutional and void in providing a penalty of one hundred per cent in the event a person in possession of property seeks to have his right to possession of the property judicially determined and loses in the trial court, and thereby deters a person from seeking a judicial determination of his rights in court, which amounts to a denial of due process of law, the equal protection of the law, and is a closing of the door of justice to a litigant, all contrary to Section 10 of Article 2 and Section 30 of Article 2, of the Constitution of Missouri, and Article 14 of the Amendments to the Constitution of the United States. White v. Delano, 270 Mo. 16; Ex parte Young, 209 U.S. 123, 147; Cotting v. Stockyards, 183 U.S. 79, 100; Railroads v. Ellis, 165 U.S. 150; Wadley Southern Rd. v. Georgia, 235 U.S. 651; Bennett v. Vattier, 136 Wis. 193.

Crow & Newman for respondents.

(1) The relation of landlord and tenant existed between the appellants and Mrs. J. H. Gallop. Shouse v. Krusor, 24 Mo.App. 279; Wilkinson v. Wilkinson, 62 Mo.App. 249; Adams v. Gilchrist, 63 Mo.App. 639; Gillespie v. Hendren, 98 Mo.App. 622; Williams v. Treece, 184 Mo.App. 135. (2) Appellants' term ended with the death of Mrs. Gallop. Shouse v. Kusor, 24 Mo.App. 279; Henry v. Bottling Company, 277 Mo. 508; 9 Cyc. 631 (C). (3) Respondents, being grantees of Mrs. J. H. Gallop, may maintain unlawful detainer against the tenant of the grantor. Tucker v. McClenney, 103 Mo.App. 318; Doner v. Ingram, 119 Mo.App. 156; Ray v. Blackman, 120 Mo.App. 497. (4) The mental capacity of grantor to execute and deliver the deed to respondents cannot be inquired into in this form of action for the following reasons: (a) The merits of the title shall in nowise be inquired into in a suit for unlawful detainer. R. S. 1919, sec. 3015; Jones v. Jones, 281 Ill. 595; Windett v. Hurlburt, 115 Ill. 403; Weisman Co. v. Miller, 188 N.W. 732. (b) The attempted issue to have the deed to respondents adjudged void and of no effect and therefore cancelled, because of the want of the mental capacity of grantor is an equitable defense and cannot be asserted in this form of action. Graham v. Conway, 91 Mo.App. 391; Blount v. Connolly, 110 Mo.App. 603; Medicus v. Altman, 199 Mo.App. 466; State ex rel. v. Taylor, 242 S.W. 997; Haydon v. Railroad, 222 Mo. 131; Chadwell v. Reed, 198 Mo. 359. (5) The law does not authorize the allowance of compensation for improvements in the action of unlawful detainer. Sim's Administrator v. Kelsay, 75 Mo. 68; Clemens v. Murphy. 40 Mo. 121; Kisling v. Yoder, 236 S.W. 867. (6) The statute directing the court to double the damages and the rental value found by the jury is not unconstitutional. Barnett v. Railroad, 68 Mo. 56; Spealman v. Railroad, 71 Mo. 434; Humes v. Railroad, 82 Mo. 221; Keller v. Insurance Co., 198 Mo. 440; Barker v. Insurance Co., 269 Mo. 21; Fidelity Mutual Life Assn. v. Mettler, 185 U.S. 308; 6 A. L. R. 212, 234. (a) This provision of the statute has been on the statute books since 1855, and during all the time since then the same has been applied and followed in every court to which this statute has been carried. Ish v. Chilton, 26 Mo. 259; Labeaum v. Nelson, 34 Mo. 591; Alexander v. Westcott, 37 Mo. 108. (b) The courts have also uniformly held that: "the manifest purpose of the statute relating to this subject was to preserve the peace, to prevent personal conflicts, and to deprive any person of any authority to use force in asserting his supposed rights to possession of property held by another." Sitton v. Sapp, 62 Mo.App. 204.

OPINION

Small, C.

Unlawful detainer, commenced before a justice of the peace, for possession of Lot 15, Block 6, West Ridgway Place, in Kansas City. Complaint alleged plaintiffs were owners and entitled to possession, and that defendants wilfully and without force held over said premises after the time they were demised or let to them; that the value of monthly rents and profits was $ 75. Prayer was for restitution and damages and value of monthly rents. The justice rendered judgment for plaintiffs, and defendants appealed to the circuit court. In that court, at the time of trial, defendant's attorney stated that the defense was that defendants moved into the premises at the solicitation of the owner, Mrs. Almeda Gallop, who was an invalid and lived alone in said premises, under a written memorandum that they would have the option of staying there for a year or two years, and in lieu of rent they were to furnish her heat, water, light and board; that they complied with their agreement; that Mrs. Gallop died during the first year, and that the second year would not expire until September after the suit was brought; that prior to her death, plaintiffs obtained a deed to the premises from Mrs. Gallop at a time she was not capable of making a deed, and their deed is void.

Plaintiffs then offered testimony to show that the rental value of the property was $ 35 or $ 40 per month; also their deed from Mrs. Gallop. This deed was dated January 7, 1921, acknowledged the same day, and recorded April 4, 1921. It was a warranty deed in form; consideration, $ 1. They further showed that plaintiffs were nephews of Mrs. Gallop, and that she was a widow. That the nearest relative who survived her was the mother of one of the plaintiffs. They also introduced the following paper signed by defendants and Mrs. Gallop: "Mr. and Mrs. Geo. B. Wandling will make their home at 704 Bennington with Mrs. J. H. Gallop for one or two years, if they wish, and furnish heat, water, light and board for same. (Signed) G. B. Wandling, Clare R. Wandling, Mrs. J. H. Gallop. Dated, September 25, 1920."

It was also shown by plaintiffs that 704 Bennington was the property sued for. On cross-examination of plaintiffs' witness, the court ruled out all questions as to the delivery of the deed and condition of mind of Mrs. Gallop when she made the deed, and rejected defendants' offer to prove by the witness that at the time of the execution of the deed Mrs. Gallop was of unsound mind. The plaintiffs also showed that defendants were in possession at the time of Mrs. Gallop's death, to-wit, March 26, 1921. This was all of plaintiffs' evidence, and thereupon defendants offered a demurrer thereto, which was overruled.

Defendant Clare R Wandling testified that she was the wife of defendant George B. Wandling; that it was their purpose to remain in the premises for the two years mentioned in said document, executed by defendants and Mrs. Gallop, which would be until September 25, 1922, and that plaintiffs never made any demand in writing for said premises. Defendants then offered to prove by this witness and also by her husband that defendant refused to move out to Mrs. Gallop's house unless she entered into an agreement whereby their arrangement would last for a year or two years, if defendants wished. that their moving involved breaking up their home and moving to Mrs. Gallop's at great expense, and that that was one of the essential elements in the execution of such agreement. That in order to make the place, 704 Bennington, so that they could live in it, it was necessary for defendants to make quite an expenditure in the way of putting in electric lights, water, gas, gas stove and screens and other things. All...