Thomas v. Zumbalen

• Decision Date: 31 March 1869
• Citation: 43 Mo. 471
• Parties: EZRA THOMAS, Trustee of CHARLOTTE WHITE, Appellant, v. AUGUSTA ZUMBALEN and H. KROEGMEYER et al., Respondents.
• Court: Missouri Supreme Court

43 Mo. 471

EZRA THOMAS, Trustee of CHARLOTTE WHITE, Appellant,

v.AUGUSTA ZUMBALEN and H. KROEGMEYER et al., Respondents.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

Beal & Knox, for appellant.

I. The lease of Zumbalen to Kroegmeyer inures to Charlotte White, because: 1. Kroegmeyer was lessee of Mrs. White by lease of March, 1861, for three years; 2. He was mortgagee by deed of trust of 4th of October, 1860; 3. He was in possession under lease of 27th of December, 1861, as tenant of Henry Zumbalen, for use of Mrs. White, to restore it to her by an agreement between Henry Zumbalen, Henry Kroegmeyer, and White. “If a mortgagor, executor, trustee, or tenant for life, etc., having a limited interest, gets advantage, by being in possession or otherwise, in obtaining a new lease, he is not allowed to retain it for his own use or benefit, but must hold it for the mortgagor or trustee,” etc. (Holridge v. Gillespie, 2 Johns. Ch. 30; Jones v. Kearney, 1 Dru. & War. 161-2; Aspinwall v. Jones, 17 Mo. 209.)

II. The lease of Mrs. White was not forfeited, because, where the lease had a condition that the lessee should pay all taxes, no forfeiture inures until there is a proof of demand of payment of taxes within the period required by law for judgment. (17 Johns. 66.) To create a forfeiture of lease there must be a formal demand of the precise sum for the last current quarter, and the demand must not include any portion of the rent of previous quarters. (Taylor's Land. and Ten. § 493.) The lessor must prove a demand of rent on the last quarter-day of payment, at convenient time; and without compliance with all the formalities of the common law there is no forfeiture. (17 Johns. 66.) According to these authorities the lease of Mrs. White was not forfeited at the time the new lease to Kroegmeyer was made, because he paid the rents and taxes, and because the attempted forfeiture was made fraudulently, on a demand of payment, in a lump, of several quarters--not on the last day of payment, at a convenient place, and on the premises. The defendant cannot set up the new lease and attempted forfeiture, to defeat Mrs. White and deprive her of the leasehold, by a forfeiture fraudulently brought about by himself and for his own benefit.

III. Where a tenant takes possession under a lease (as Kroegmeyer, in April, 1861) and enjoys the property, he cannot dispute the title of the landlord after expiration of the lease. (3 Phil. Ev. 201; Jackson v. Spear, 7 Wend. 401.)

IV. The obligation on a tenant not to dispute his landlord's title after expiration of the lease extends to the lessee and his successor holding under lessee. (3 Johns. 499; 14 Mo. 535; 16 Mo. 162.)

V. A tenant continuing in the possession after the expiration of his term will be presumed to hold under and subject to the previous lease. (Quinette v. Carpenter, 35 Mo. 502; Pacific R. R. v. Lindell, 39 Mo. 329; Hunt v. Bailey, 39 Mo. 257.)

VI. The acceptance of rents and performance of covenants in lease after breach of condition is a waiver of forfeiture--it is an estoppel. (40 Mo. 449.)

Jecko & Clover, for respondents.

The decree was properly rendered for the defendants, dismissing the bill. There was an entire want of equity in the complainant's case, as made by the bill in his own showing.

BLISS, Judge, delivered the opinion of the court.

On the 5th of June, 1853, Philip Rock made to Ezra Thomas, trustee for Charlotte White, a lease of a city lot in St. Louis for sixteen years and five months, reserving the sum of $78.75 annually for ground rent, payable quarterly, and stipulating that the lessee should pay all taxes and assessments for grading, paving, etc., and at the end of the lease to have the right to remove all buildings and improvements erected on the lot. The lease also had a clause of forfeiture upon non-fulfillment of its conditions. Mrs. White and her husband erected a building upon the lot, and, in March, 1861, leased it to defendant H. Kroegmeyer, for three years, at $400 a year, who was to pay the ground rent out of that sum. In the meantime Philip Rock had died, and Henry Zumbalen had been appointed curator of his minor children. After Mrs. White had removed to Jefferson county, Zumbalen sued out a landlord's writ of dispossession for non-payment of the ground rent, and recovered an informal judgment. Mr. and Mrs. White had become indebted to Kroegmeyer over $600, and it was expected that the rent of the premises, except the ground rent, would be applied to pay that indebtedness--Kroegmeyer having also a trust deed of the leasehold estate to secure the debt.

On the 27th of December, 1861, a compromise of the whole matter was made between Mrs. White, Zumbalen, and Kroegmeyer, by the terms of which Zumbalen was to give to Kroegmeyer a lease of the premises for two and a half years from the first of January, 1862, upon the same terms as the original lease; the forfeiture was to be waived. At the end of the two and a half years, Mrs. White was to have possession under her original lease; and as a consideration for Kroegmeyer's lease, he was to cancel the indebtedness of Mr. and Mrs. White to him, and give up their notes, and pay the back and accruing ground rent. This agreement was carried out on behalf of Mrs. White--Zumbalen, by her consent, executing the lease, with the stipulation as to her notes indorsed on the back; and Kroegmeyer enjoyed the premises for the full term, without disturbance, his lease expiring July 1, 1864.

The animus of Kroegmeyer, as afterward fully developed, became apparent in 1863, in a fraudulent attempt then made to procure a transfer to himself of the whole interest of Mrs. White in her leasehold estate. As the beneficiary of their deed of trust of 1860, to secure the indebtedness of Mr. and Mrs. White to him, which had been fully paid by the two-and-one-half-years' lease, he procured a trustee's sale of the property, which was bid off by a third party and conveyed to another, and by him to Kroegmeyer. Zumbalen's agent attended the sale, exposed the fraud, and “notified all persons present that the debts were paid.”

In August, 1864, just after the expiration of the two-and-one-half-years' lease, Kroegmeyer holding over his term, a suit of unlawful detainer was instituted against him in the name of Zumbalen, though at the instance of Mr. and Mrs. White, for their benefit and at their expense. This suit resulted in favor of defendant before the justice, and an appeal was taken to the St. Louis Land Court. Soon after, Zumbalen, who seems to have acted in good faith toward Mrs. White throughout, died. Mrs. Zumbalen was appointed curatrix of the children, and at the October term, 1865, the suit was revived in her name. The case was continued along until the April term, 1866, when it was dismissed at the instance of the plaintiff, Kroegmeyer continuing in possession -- Mrs. Zumbalen having, as curatrix, on the 13th of April, executed to him a lease for the remainder of the term of Mrs. White, for the yearly payment of $140, rent, taxes, etc. Thus Kroegmeyer seems to be securely possessed of the whole of Mrs. White's property in the lease and improvements.

The record discloses the steps by which he obtained the property. On the 13th of April, 1866, Kroegmeyer, with his attorney, goes to Mrs. Zumbalen and settles the suit. He pays her the ground rent due; she gives him a receipt in full, with an agreement to dismiss the suit, and executes to him the lease. Everything was done by Kroegmeyer's attorney, and it was then agreed that notice of forfeiture should be served on Mrs. White, which was accordingly drawn under date of the 16th, three days after, by the same attorney, and served upon Mr. and Mrs. White, in Jefferson county. Mrs. Zumbalen testifies that on the 13th of April, 1866, Kroegmeyer and J. J. McBride came to...