Thomas M. Finney's Trs. v. City of St. Louis
| Decision Date | 31 October 1866 |
| Citation | 39 Mo. 177 |
| Parties | THOMAS M. FINNEY'S TRUSTEES et al., Plaintiffs in Error, v. THE CITY OF ST. LOUIS AND MICHAEL AHERN, Defendants in Error. |
| Court | Missouri Supreme Court |
Error to St. Louis Land Court.
Glover & Shepley with C. G. Mauro, for plaintiffs in error.
What, on the face of the contract made by the parties, was the right secured to Ahern? He was holding under the lease with the consent of Finney, and had all the rights guaranteed by the lease; one of these rights was that of removing the house.
Where a lessee puts improvements on the landlord's property for the purpose of “ornament, domestic convenience, or to carry on trade,” the law is now settled that the tenant lessee may remove the same from the premises--Tayl. Land. & Ten. p. 363, §§ 544-5; 2 Kent Com. 342-3; 28 Mo. 70; 36 Mo. 324; King v. Wilcomb, 7 Barb. 263. By subsequent verbal agreements Ahern held over under the same lease with the same stipulations in every respect. Where tenant merely holds over, the law assumes the terms of the expired lease to attach--35 Mo. 502; Tayl. Land. & Ten. p. 369, § 532.
When the tenant renews his lease, he should stipulate for the right to remove the buildings, if he wishes to. That is just what Ahern did; he agreed to rent again with all the conditions in the lease, and was under such conditions when the city took the buildings.
The question may be considered when the lessee was to exercise the right to remove. We contend he could do so while he had lawful right of entry upon the premises, while he remained lawfully in possession; that is, at any time during the continuance of his term--2 Kent Com. 346; Taylor Land. & Ten. 364. So afterwards, if tenant is still in possession--Dubois v. Kelly, 10 Barb. 496.Epsy with Krum, Decker & Krum, for defendants in error.
The real debateable question in this case is whether the amount ($1,850) awarded by the land commissioner's jury in the opening of Sixteenth street should go to the tenant last in possession, or to the owners of the land.
The right to remove the building was limited by the first lease, which ended in the year 1860. After the expiration of that lease the tenant's right to remove ceased, for his right under all circumstances must be exercised within the term--Powell v. McAshan, 28 Mo. 71; Schlemmer v. North, 32 Mo. 206; Tayl. Land. & Ten. § 551, and cases; Leyde v. Russell, 1 B. & Adol. 394.
His holding over made the tenant a tenant at sufferance, if the landlord so desired to treat him. He could have turned him out in an action of unlawful detainer without giving him notice to quit, because his term expired at a day certain--Alexander v. Wescott, 37 Mo. 113, and cases there cited.
This was a petition for an injunction to restrain the City of St. Louis from paying the sum of $1,850 to the defendant Ahern, and to compel its payment to the plaintiffs.
The facts in the case seem to be that Finney, by an instrument in writing dated May 7, 1860, leased to the defendant Ahern a lot in the city of St. Louis, fronting on Washington avenue, for one year from the 1st day of January, 1860, for the sum of $60. By the terms of the lease Ahern was to pay all State, county and city taxes, and on compliance with the conditions to be allowed to remove a brick building which he had erected on the lot while he held it under a former lease from the same party and which expired by limitation January 1, 1860.
Ahern held on under the first lease above mentioned, and continued to occupy the demised premises with the consent of Finney till about April, 1864, all the time paying rent to Finney, and paying the taxes and complying with the terms of the lease.
The City of St. Louis, by ordinance numbered 4,724, ordered Sixteenth street to be opened from Christy...
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