Klingbeil v. Neubauer ( 1922 )

The opinion of the court was delivered by

Marshall, J.:

This is an action in forcible detainer. Judgment was rendered for the plaintiff, and the defendant appeals.

It appears that L. Klingbeil died owning real property, among which was the property in controversy. Two or three years before this action was commenced, Ada Klingbeil, acting as agent and manager of the Klingbeil estate, rented the property to the defendant, who occupied it continuously until after judgment was rendered in the district court. On May 24, 1920, plaintiff gave defendant written notice that ■ his tenancy would terminate thirty days from that date, and on July 7, Í920, gave him written notice to forthwith quit and leave the premises and that an action for the possession thereof was about to be brought. The action was thereafter commenced and was tried before a justice of the peace on July 24, 1920. A verdict was rendered in favor of the defendant, and the plaintiff appealed to the district court. On 'July 24, 1920, Frank Shoemaker, who owned an undivided one-twelfth interest in the property, consented in writing that the defendant might continue to occupy the premises at the same rate of rent.

The defendant presents but one question: “One of the ‘Real Parties in Interest’ was not joined either as plaintiff or defendant; therefore plaintiff should not be permitted to maintain this action.” The defendant cites section 25 of the code of civil procedure which provides that “every action must be prosecuted in the name of the real party in interest except as otherwise provided in section 27.” Section 27 provides that “a person with whom or in whose name a contract is made for the benefit of another . . . may bring an action without joining with him the person for whose benefit it is prosecuted.”' However, this action is not on the contract made by the plaintiff with the defendant, it is to terminate the relation between the plaintiff and the defendant created by that contract. The defendant received the possession of the property from the plaintiff, and when that possession is terminated, the property should be returned to the plaintiff. This grows out of the principle of the landlord and tenant law, that a tenant cannot deny the title of his landlord. The defendant cannot defeat the plaintiff’s right to recover by claiming to hold under some one of the tenants in common of the real property. (Gen. Stat. 1915, § 5969; Brenner v. Bigelow, 8 Kan. 496; Pettigrew v. Mills, 36 Kan. 745, 14 Pac. 170; Forbes v. Caldwell, 39 Kan. 14, 19, 17 Pac. 478; Fry v. Boman, 67 Kan. 531, 73 Pac. 61; Whittle v. Hughes, 88 Kan. 702, 129 Pac. 1172; Ellsworth v. Eslick, 91 Kan. 287, 292, 137 Pac. 973; 24 Cyc. 942.)

The judgment is affirmed.