Walser v. Graham , 45 Mo. App. 629 ( 1891 )

Smith, P. J.

— This is an action for forcible entry and detainer for the recovery of the possession of eighty acres of land in Barton county. Prom the defendant’s statement of the case, which is substantially correct, it appears that the defendant was occujjying the premises sued for, as tenant of A. D. Morgan, under a written agreement, for a term commencing January 31, 1883, .and ending March 1, 1885. When summons was served on the defendant Graham, he immediately notified his landlord, Morgan, and requested him to defend the suit, which Morgan agreed to do, and did do, employing the law firm of Buler & Timmonds for that purpose. On trial before the justice of the peace, judgment was rendered in favor of plaintiff, and an appeal was taken to the circuit court of Barton county, Morgan signing the appeal bond. The case was tried three times in said circuit court; at said trials plaintiff had verdict once and the defendant twice ; but, for one reason and another, new trials were granted, and the plaintiff removed the cause to the circuit court of Yernon county on change of venue. At the November term, 1889, of the Yernon circuit court, the case was again tried, and the defendant again had verdict and judgment in his favor, and it is from that judgment that appellant has appealed to this court. The defendant Graham remained in possession of the premises in dispute, as tenant of Morgan, till, about April 1, 1887, when he delivered possession to his landlord and moved to a neighboring town, and went to work as a section hand on a railroad. While thus employed as a section hand, on the last Sunday night in August, 1887, after this case had been twice tried in the circuit court, the plaintiff went to the town, where defendant Graham was residing, and, without the knowledge of Morgan, or of the attorneys defending the case, induced Graham to sign a stipulation for judgment in this case in favor of the plaintiff. Circuit court convened on the fifth of September, 1887, and on that day plaintiff filed, or caused to be filed, the stipulation above mentioned. In the meantime, Graham had informed his former landlord, Morgan, of the transaction between himself and plaintiff, and, on the same day the stipulation was filed, appeared in open court and asked leave to withdraw the stipulation. “Whereupon the court, after hearing the evidence offered by plaintiff and defendant, found that defendant ought to be allowed to withdraw said stipulation, and so ordered, and the same was by defendant withdrawn.”

Plaintiff filed motion for a new trial, complaining of alleged errors committed by the court at the' trial, and also afterward filed a motion for judgment, notwithstanding the verdict of the jury, basing his motion upon the stipulation hereinbefore mentioned. Both of said motions were, by consent of parties, continued till the May term, 1890, of the Vernon circuit court, when, on the thirteenth of May, M. T. January, an attorney, appeared in open court and filed a second stipulation for judgment in favor of plaintiff, signed by Graham, at the same time announcing to the court that the stipulation was handed to him by the plaintiff Walser, and that it was at his, Walser’s, instance and request he was filing the same, and that he had not seen the defendant Graham since the trial. In the meantime, Graham had left the state, and, as we supposed, had gone to Colorado. On the twenty-third of June, 1890, plaintiff filed a second motion for new trial, and on the same day a second motion for judgment, based on the second stipulation signed by Graham and filed by M. T. January, above mentioned.

While all the foregoing motions were pending, A. D. Morgan, who was Graham’s landlord, and who was at that time still in possession of the land sued for, and who had at his own expense been defending the suit from the beginning, and who was Graham’s bondsman in this suit, made written application, under oath, to the circuit court to be permitted to continue the defense of the suit in the name of the defendant Graham, or to be substituted as party defendant in the place and stead of Graham, and proposed to give any bond the court might require. Plaintiff thereupon filed his motion to strike out said application of said Morgan for the reason that it was not a proper paper to be filed in the case. The court overruled said motion to strike out; sustained the application of Morgan, and made an order permitting, authorizing and empowering him to continue the defense of 1he suit in the name of the defendant Graham ; but required him to give bond to indemnify Graham against, all costs and damages occasioned by the continuation of this suit, and to abide by, pay and satisfy any judgment which might finally be rendered against said Graham in said case. The bond was given and approved by the court.

I. The principal question argued by counsel, both here at the bar and in their briefs, was as to the propriety of the action of the trial court in respect to the 'stipulations presented to it by the plaintiff. The underlying question in the case, as we think, is whether the defendant Graham, the tenant of Morgan, the person under whom he held, could, after having given notice to the latter that a summons in the action had been served upon him, make a valid contract with the plaintiff that judgment be rendered in favor of plaintiff, and against defendant in the cause, without the assent of Morgan, Inis landlord. The statute in relation to landlord and tenant, section 6364, provides that every tenant on whom a summons in an action to recover the tenements held by him shall be served shall forthwith give notice thereof to the person of whom such tenant holds, under the penalty of forfeiting to such person the value of three years’ rent of the premises occupied by him. Neither the statute in relation to forcible entry and detainer, nor that of landlord and tenant, makes provision for making the person from, or through, whom a party in possession claims, a codefendant, when the party in possession is sued, as is the case in actions of ejectment. R. S., secs. 4629, 4630. The manifest object of the statutes, in requiring the occupying tenant, when • an action is brought by a stranger against him to recover the possession of the demised premises, to forthwith give notice thereof to his landlord, is to enable the latter to defend the action. He is the main party in interest. The tenant may have little or no interest in defending his possession. He may feel disinclined to go to the necessary expense of employing counsel or procuring evidence to make the defense. He may prefer to surrender the possession, or let judgment go against him by default rather than assume the burden of resisting the action. The validity of the landlord’s title may depend upon the maintaining of the possession. The intention of the statute in requiring the tenant to give him notice was for the purpose of permitting him to defend the action in the name of the defendant. If such had not been its purpose, it would have provided that he be made a codefendant. If such was not its intention, why require that he be notified by the tenant? If he cannot be made a codefendant, and cannot defend in the name of the tenant, then, indeed, is the statute a meaningless thing. If the statute does not, by necessary implication, authorize the landlord, in case of a suit against his tenant by a stranger to recover the demised premises, to appear and defend in the name of the tenant with like effect, as if he were a codefendant, or the sole defendant, then an unscrupulous tenant has it in his power to enter into an agreement with the plaintiff whereby he may barter away the hapless defendant’s right of defense ; but to say that a tenant can do this, is to say that the landlord’s rights are entirely subject to the caprice and whim of his tenant. This would render his possession of the demised premises extremely precarious and uncertain.

In the action of ejectment where the landlord defended in the tenant’s name, it has been decided that .a cognovit actionem of the tenant will not be acted upon by the court to the prejudice of the landlord. Kellogg v. Forsyth, 24 How. 186; Doe v. Franklin, 7 Taun. 9. And no reason is perceived why it would be different in an action of this kind. As neither the first nor the last cognovit which the plaintiff presented for the action of the court was executed with the assent of Morgan, the landlord, for that reason, if for no other, the rulings of the court in respect thereto have our approval.

Again, a tenant cannot dispute the title of his landlord. Pentz v. Kenster, 41 Mo. 447. But if the plaintiff’s position is correct, the tenant can, by suffering judgment for the possession to go in favor of plaintiff in an action like this, place another in his shoes who can. This, in its practical effect, would be an assignment of the tenant’s term without the assent of the landlord, which the statute expressly interdicts. Sec. 3075. Nor is any valid objection perceived to the action of the court in permitting Morgan to continue the defense of the action in the name of the defendant, nor requiring him to enter into a good and sufficient bond to defendant to pay all costs and damages occasioned by the continuation of the suit, and to pay and satisfy any judgment which should be finally rendered against him in the cause.

II. As to the plaintiff’s contention in respect to the action of the court in admitting evidence, it is sufficient to say that as to so much thereof as the plaintiff has preserved an exception to, while perhaps irrelevant, its harmful character is not perceived. The defendant offered in evidence a number of deeds, one of which was from the Ellis heirs to Morgan for the land in controversy, and not for the purpose of proving title, but to show along with other circumstances in evidence that plaintiff, who had an abstract of Barton county land titles, and was familiar with the title to this land, when he learned that Morgan had acquired such title, abandoned the land. This evidence was excluded by the court on the ground that it might tend to show title in Morgan, the defendant’s landlord. This ruling of the court, in connection with the instruction, to the effect that it made no difference who had the title to the land, nor who was the owner, persuades us that the plaintiff is in error in supposing that the case was tried upon the theory that the title was in either plaintiff or Morgan.

III. While the mode of examination pursued by defendant’s counsel was subject to some criticism, we cannot discover from the entire record before us that the action of the court in permitting it was so prejudicial as to call for an interference. Counsel in the examination of their own witnesses should not assume the existence of a fact and then ask the witness whether it is or is not true. This is in its nature leading the witness, and such practice ought not to be indulged in.

IY. The plaintiff complains of the action of the court in refusing the following instruction: “If the jury believe from the evidence that Walser was in the peaceable possession of the land in 1880, by J. I). Coiner, his tenant, under a lease from March 1, 1880, to March 1, 1881; that Walser made a lease to one J. R. Howe, from March 1, 1881, to March 1, 1882, and that Howe occupied the land ; that Walser made a lease to Green from March 1, 1882, to March 1, 1888, and that Green occupied the land until January, 1883, when he left, and that defendant Graham went into possession of the land about February 11, 1885, without Walser’s consent, you will find for the plaintiff. And in this connection you are further instructed that it does not alter fie case if TIowe and Green and the defendant also had leases from Morgan ; if you shall believe from the evidence that such leases were made by Morgan, without the knowledge or consent of Walser.” The undisputed evidence was that the plaintiff was in possession of the land in March 1, 1880, and that he then rented the same to J. D. Coiner for one year, so that it is not controverted that Coiner’s possession was solely under the plaintiff. It further appears that J. D. Coiner- abandoned the possession of the land before the end. of the year, and one J. S. Coiner went into possession and so continued for the remainder of the term the land was let to J. I). Coiner. There was evidence showing that J. S. Coiner was a cousin of J. D. Coiner, and that the former went into the possession of the abandoned premises with the assent of the'latter, and also of Morgan. The plaintiff does not seem to have known of the change in. the occupancy of the premises. After the expiration of the term of J. D. Coiner, the plaintiff leased the premises respectively to Howe and Green for the years 1882 and 1883, and Howe and Green also rented the premises of Morgan for these years. But Graham, who went into possession under Morgan, did not rent of plaintiff, as did Howe and Green. It does not appear that plaintiff was apprised, during the terms of Howe and Green, that they had rented also of Morgan. From this it appears that, at no period of time from the date of the leasing by plaintiff of the premises to J. D. Coiner to the end of Green’s occupancy, was the plaintiff out of the actual possession of the land. It cannot be seriously maintained that the occupancy of J. S. Coiner was a dispossession of the premises by plaintiff. J. S. Coiner was the subtenant of J. D. Coiner, and the possession of the former was that of the latter, and the plaintiff. ' The permission given by J. I). Coiner to J. S. Coiner to occupy the-premises in liis stead was, in effect, an assignment of an unexpired term without the assent of plaintiff, which was void under the statute, yet this did not have the operative effect to render the occupancy of J. S. Coiner adverse to the plaintiff. In May v. Luckett, 48 Mo. 472, it was said : “ When a tenant leaves either at the end of the term or by surrender of the lease, the landlord comes into sole possession, and he must be considered as-possessed of the premises, though not personally present, and it is not the constructive possession alone, arising from title, for that is not sufficient to maintain this action, but real possession arising from his relation of landlord; and, when he put the tenant in, he held through the tenant and continued and became exclusive at the termination of the tenancy, and until he has time by his acts to indicate his intention in regard to the possession. Can it be pretended that an owner of land loses his actual possession because, after the expiration, of his tenant’s term, and, perhaps, before he can find, another, some intruder enters and takes possession. Whether the intruder be a mere trespasser or have good' title makes no difference. If a landlord, when not present, were held to be out of possession when the tenant has left, so that a stranger or adverse claimant could enter and hold until ejected by proof of title, the greatest frauds might be practiced and this beneficent statute-deprived of its chief efficacy.”

Whether J. S. Coiner was a mere intruder, or-entered into possession ot' the premisses with the assent-of both J. D. Coiner and Morgan, -would be of no consequence. It must follow that the renting of the premises by Howe and Creen, of Morgan, without the knowledge of plaintiff, did not have the effect to disturb-the.continuity of the plaintiff’s possession, from the-time he rented to J. D. Coiner until the defendant’sentry into possession. Farren v. Heinrich, 86 Mo. 521; McCartney v. Auer, 50 Mo. 397.

We must think the court erred in refusing this instruction.

V. The eighth instruction given by the court, thus: “ If plaintiff rented the land to J. D. Coiner from March 1, 1880, to March 1, 1881, and that the latter left in September, 1880. and that J. S. Coiner took possession of the same adversely to plaintiff, and that the said J. S. Coiner left the place in the spring of 1881, and that Howe and Green thereafter became the occupying tenants of Morgan, the finding should be for defendant,” we think should not have been given. As has already been stated, in no view of the evidence could the occupancy of J. S. Coiner be held to be adverse to the plaintiff. There was no evidence to justify the submission of this theory of the case to the jury. J. S. Coiner’s occupation of the premises did not have the effect to dispossess the plaintiff.

For these reasons the judgment must be reversed, and the cause remanded.

All concur.