Walker v. Harper

• Decision Date: 31 March 1863
• Citation: 33 Mo. 592
• Parties: SUSAN WALKER, Respondent, v. LOUISA HARPER, Appellant.
• Court: Missouri Supreme Court

33 Mo. 592

SUSAN WALKER, Respondent,

v.LOUISA HARPER, Appellant.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Land Court.

Goodlett and Gray, for appellant.

I. The justice before whom this suit was commenced had no jurisdiction of the case, as it was neither alleged or proved that the property sued for was within his ward; and by 23d sec. of 2 R. C. 1855, p. 1016, his jurisdiction in landlord and tenant proceedings is confined to cases in his ward. The justice had no jurisdiction except that given in 26 Mo. 601, and consent even cannot give it. (20 Mo. 350.) This landlord and tenant proceeding is a special statutory one, and to sustain jurisdiction it must be affirmatively alleged and shown.

II. The second instruction should have been given. (2 Phil. Ev., last ed., p. 137 & n. 293, and p. 148, div. 5, entitled “Jurisdictions with respect to time and place of holding the court,” &c., and authorities there cited; also p. 196 of same book.)

The description of the property sought to be recovered was not sufficient. Sec. 332, R. C. 1855, p. 1017, requires plaintiff to file a statement particularly describing the property rented or leased, and sworn to.

The court erred in excluding, when offered by defendant in evidence, the notice from Lindell of forfeiture of lease, and the record in the ejectment suit brought by Lindell and then pending against defendant and others, and brought by Lindell before his agreement with Mrs. Walker and before she brought this suit: 1. Because Mrs. Walker claimed under Lindell, and was, as a privy under him, bound by his acts and admissions. The notice of forfeiture was dated 28th December, 1858, long before this suit was brought, and the suit by Lindell in ejectment to enforce the forfeiture, also brought before this suit, all being acts of Mrs. Walker's alleged grantor, were, as I contend, clearly admissible against Mrs. Walker, Lindell's alleged grantee. (1 Greenl. Ev., § 189.) On this ground, what Lindell had done and claimed in regard to the lease was admissible. It was neither alleged or proved that defendant had ever paid rent to plaintiff, or had ever acknowledged herself to be the tenant of plaintiff. Indeed, plaintiff's allegations and proof all proceeded upon the idea that defendant had never acknowledged the relation of tenant to plaintiff; but that plaintiff had acquired the rights of Nugent and of Lindell, and therefore she was entitled to call (as being assignee of Nugent and Lindell) on defendant for rent, on showing the deeds of Nugent and the agreement of Lindell, &c., to defendant. Plaintiff's allegations and proof sought to make a case under 2 R. C. 1855, p. 1018, § 38, 39 & 40, and there was no proof to entitle plaintiff to recover except as a purchaser under either Nugent or Lindell.

III. The third instruction refused should have been given. Plaintiff's agreement with Lindell of 15th August, 1859, gave plaintiff no rights as landlord against defendant, because it was not a deed nor acknowledged. R. C. 1855, p. 1018, § 38, gives this remedy only to a purchaser, and § 40 requires the plaintiff instituting this proceeding to show a “deed from the original lessor, regularly acknowledged,” in order to make out a case for this remedy. The agreement between Lindell and plaintiff was not a deed, nor was it acknowledged.Geo. Marshall, for respondent.

BATES, Judge, delivered the opinion of the court.

This is a proceeding, under the landlord and tenant law, for the possession of a lot in the city of St. Louis. It was tried before a justice of the peace, where the plaintiff had judgment. The defendant appealed to the Land Court, where judgment was given against her, and she appealed to this court.

It appears that Thomas Nugent, who was assignee of a lease from Peter Lindell to one Keegan, who had assigned it to Nugent, sublet a portion of the leased property to the trustee of Mrs. Gore, at a rent equal to one-fourth of the rent Nugent was to pay Lindell, who transferred the sublease to the defendant, who occupied the premises. Nugent assigned the lease from Lindell to the plaintiff. The lease from Lindell to Keegan was for twenty years, at a fixed rent for the first ten years, and for the second ten years the rent should be fixed by arbitrators in a manner provided in the lease. At the end of the first ten years, Lindell and the plaintiff fixed the amount of the rent for the second ten years by agreement. The defendant having failed to pay rent after demand and exhibition to her of the deed under which the plaintiff claimed, this suit was brought.

At the trial in the Land Court, the defendant asked a number of instructions, which were refused, and those refusals assigned for error. The instructions are as follows:

1. The defendant asked the court to declare that there is no such particular description...