Tiernan v. Johnson

• Decision Date: 31 May 1841
• Citation: 7 Mo. 43
• Parties: TIERNAN v. JOHNSON ET AL.
• Court: Missouri Supreme Court

7 Mo. 43

TIERNAN

v.JOHNSON ET AL.

Supreme Court of Missouri.

May Term, 1841.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

HUDSON, for Appellant. 1st. That the Circuit Court erred in refusing to give the instructions asked by the counsel for the defendant, because it is clear from the testimony in the cause that there existed a tenancy: that the appellant was to all intents and purposes a tenant; that his tenancy had been recognized by William Dalmore, one of the appellees, by the acceptance of rents, and the doing of other acts which showed that Dalmore considered and treated Tiernan as a tenant. That the lease and receipts offered in evidence by the defendant in the court below, establishes the existence of a tenancy. It was, therefore, necessary for the plaintiffs to prove a notice to quit before they could maintain this action, and the court below should have given the instructions asked for. See Cruise Dig. 261; 4 Cruise Dig. 73; Woodfall's Landlord and Tenant, 163; 1 Wheat. 576-77; also, 4 Kent's Com. 112. 2nd. The verdict is against the law and the evidence. The plaintiffs below having failed to establish a notice to quit before bringing the action, and also failed to show a sufficient title to the premises in dispute, it appearing from the evidence that there were others equally interested in the title to the said premises and should have been joined in the action. 3rd. The damages are excessive and against or without any evidence to justify the verdict and finding, there being no testimony as to the value of the premises in dispute, the damages, if any ought to have been given, from the testimony, should have been nominal. 4th. The court erred in refusing to grant a new trial for the reasons filed below, and upon the evidence given on the trial of the cause. The question as to the necessity of a notice to quit, in cases like the present, has been so often and so clearly settled that the counsel deems it unnecessary to refer the court to the numerous authorities on this point.

____, for Appellees. The questions raised in this cause are: Does the lease given in evidence create the relation of landlord and tenant between the parties to this action, and produce the necessity of a notice to quit, before the commencement of the action of ejectment? Whether the guardian had power under the laws of Missouri to lease the premises of his ward for a longer time than one year at a time? Whether such guardian could make such lease without an order of the county court? Rev. Code of 1825, p. 416; Act of 8th Feb. 1825, §§ 1, 6, 7; Rev. Code of 1835, p. 295, §§ 8, 9; 7 Mass. R. p. 6; 2 Willson, 129, 135; 10 Johns. R. 438; 1 Brockenbrough, 361; 2 Kent's Com. 224, 228, note 6.

TOMPKINS, J.

This was an action of ejectment brought by the appellees against the appellant. The Circuit Court gave judgment for the appellees, and to reverse that judgment this appeal is prosecuted. On the trial of the cause the plaintiffs proved a title derived from Antoine Dutromble, having married daughters of said Dutromble. As evidence of his title the defendant, appellant here, produced a lease for eight years, made by the guardian of the heirs of said Dutromble, commencing on the 17th May, 1834, made by and with the consent of the county court of St. Louis county, of the said premises herein sued for. The statute of the land does not positively direct how the...