Pierce v. Rollins

60 Mo. App. 497, 1895 Mo. App. LEXIS 325

• Court: Missouri Court of Appeals
• Decided: January 28, 1895
• Status: Published

Opinions

Smith, P. J.

This case, as to its salient facts, is quite complex, but is simple enough as to the governing legal principles by which the rights of the parties in respect to the subject-matter thereof are to be determined. It indisputably appears from the record before us that in August, 1887, one Quimby entered into a contract with the plaintiff whereby he agreed to convey her the title in fee to a certain lot in the city of Westport; that afterward, about the first of March, 1888, the said Quimby put plaintiff in possession of-said lot who thereupon proceeded to erect a dwelling house thereon; that, still afterward, on the eleventh day of April, 1888, the said Quimby, by his deed of that date, undertook to convey to plaintiff the title in fee simple absolute to said lot; that on June 20, 1892, the plaintiff by written lease rented the house plaintiff had erected on said lot to defendant for the term of six months; that defendant paid the rent of the first two months;that he occupied the plaintiff’s house under the lease but failed and refused to make further payments, though he continued his occupancy. It further appears that on March 29, 1888, Quimby executed a deed of trust conveying said lot to one Rogers, trustee, to secure the payment of $1,000 due Northup and Pitt; that subsequently, on August 10, 1891, the said trustee sold said lot under said deed of trust, at which sale Northup and Pitt became the purchasers, receiving a trustee’s deed therefor. Afterward, on September 8,1892, the said Northup and Pitt, under a lease for four months, rented said lot to the defendant while the latter was still in possession under the lease from plaintiff. The defendant paid some rent to N orthup and Pitt after he took a lease from them. It further appears that the plaintiff, when she received the deed from Quimby, was not aware that he had previously encumbered said lot with the lien of the deed of trust already referred to. The deed of trust was filed for record some four days before plaintiff received her deed. The plaintiff, after proper demand made in writing for the delivery of the premises, brought her suit under the statute in relation to unlawful detainer, before a justice of the peace to recover the possession, etc. There was a trial in the circuit court where plaintiff had judgment, to reverse which defendant has appealed.

The decisive question in the case which is presented for our determination arises out of the action of the trial court in the giving of an instruction for the plaintiff which, in effect, told the jury that, if they believed that for a long time prior to June 20, 1892, the plaintiff was in the lawful and peaceable possession of the premises described in the complaint and that plaintiff on said day leased such premises to defendant for a period of six months and placed him in possession thereof and afterwards, on or about August, 11, 1892, defendant commenced paying rent for said premises to Northup and Pitt and had since remained, refusing to pay to plaintiff or to deliver up to her the premises, then she was guilty of unlawful detainer, unless they further believed that plaintiff either consented to the attornment of the defendant to Northup and Pitt, or, unless the latter obtained title pursuant to, or in consequence of, a sale under a deed of trust executed by plaintiff or someone who derived title through her.

The doctrine of attornment grew out of the peculiar relations of landlord and tenant under the feudal law. By the common law, attornment was necessary to give an assignee of the reversion a remedy against the tenant. Sheets v. Selden, 2 Wall. 177. An attornment is a recognition of an existing lease by a new landlord. Lindly v. Dakin, 13 Ind. 388; Austin v. Ahearne, 61 N. Y. 6. An expressed or implied promise to pay rent, or the payment of rent, as such, is sufficient evidence of an attornment. Fisher v. Deering, 60 Ill. 114.

The rule is elemental that a tenant can not deny his landlord’s title nor attorn to a stranger. He must maintain fealty to his landlord, and his possession is always to be regarded as that of his landlord. "When in possession under one title he can make no valid attornment to any one not in privity with that title. Taylor’s Land, and Tenant, see. 180; Woods’ Landlord and Tenant, sec. 569; O’Halloran v. Fitzgerald, 71 Ill. 53.

And our statute — section 6373 — expressly declares that the attornment of a tenant to a stranger shall be void and shall not in anywise affect the possession of his landlord, unless it is made, first, with the consent of the landlord, or, second, pursuant to or in consequence of a judgment at law, or a decree in equity, or a sale under execution or deed of trust, or, third, to a' mortgagee after the mortgage has been forfeited. It is further provided in our statute concerning uses and trusts, section 3948 — that the attornment of a tenant to a stranger shall be void, unless it be with the consent of the landlord of such tenant, or pursuant to, or in consequence of, the judgment of a court of law, or the order or decree of a court of equity. Recurring to the provisions of section 6373, previously quoted, and it will be observed that one of the exceptions contained in the saving clause of that section is where there has been “a sale under a deed of trust.”

The contention of the plaintiff is that this case is not within the saving clause of either of the statutes referred to, because the deed of trust under which Northup and Pitt claim title was not executed by the plaintiff, or anyone for her, but by Quimby before the date of his deed to plaintiff. Involved in this contention is a question of statutory construction. Plaintiff claims title under a deed directly from Quimby, while Northup and Pitt claim to have acquired title under a deed of trust executed by Quimby long before the date of plaintiff’s deed, so that, while both titles emanated from Quimby, they are independent and adverse. Northup and Pitt are in no sense in privity with the title of the plaintiff. In Donkle v. Holm, 44 Georgia, 266, it was said that, at common law, a tenant can not attorn to one holding title adversely to his landlord. And in Smith v. Granberry, 39 Georgia, 381, it was further said that, when one is in adverse possession of land against the true owner, and rents it to a tenant avowedly in his character of adverse holder, the tenant can not attorn to the true owner or deny the adverse possession of his landlord. In Bertrain v. Cook 32 Mich. 518, it is ruled that one having obtained possession as tenant can do no act inconsistent with, or which would change the relation existing between himself and his landlord without yielding and delivering up the possession of the premises which he acquired from him. The landlord has the right to rely upon the relation as a protection. To permit the tenant to do otherwise would be but holding out inducements to him to take advantage of his position for his own benefit and to the injury of the landlord. The law holds all such agreements as being contrary to public policy and void. In Kluth v. Faulk, 55 Iowa, 260, it was declared to be well settled that, if the tenant enters under his lease and continues to occupy without what would be tantamount to an eviction, he can not, in an action to recover rent, show either that his lessor had no title when he made the lease, or that his title has determined since then. And that it make no difference if the lessee rented of a person holding the legal title, since it was the duty of the lessee to pay the rent to his lessor whether the latter owned the legal title or not. The principle applicable to such cases rests for its support upon the doctrine of estoppel.

In Tilghmann v. Little, 13 Ill. 239, it was held that, if the possession was obtained from plaintiff, defendant must first restore the possession to the party from whom he received it before he could question the title, for the reason that the evidence did not show that the plaintiff’s title had expired. The judgment was against one Stanton, and the premises were sold as his property. It was not a purchase under a judgment against plaintiff. In Souders v. Vansickle, 8 N. J. Law (3 Halstead), 313, the prior owner mortgaged the premises to Samuel and Joseph Drake. Subsequently, he sold to Maxwell, who leased the premises to Souders. Maxwell’s interest was sold to Vansickle, and Garrison and Souders attorned to them and agreed to pay them a stipulated rent. Afterwards the mortgage was foreclosed by Samuel and Joseph Drake, and Souders, the tenant, attorned to them without the consent of Van-sickle and Garrison, the owners of the equity of redemption, to whom he had previously attorned. It was held in a suit of Vansickle and Garrison against Souders, that evidence of the mortgage and the attornment to the mortgagees under the mortgage executed by a prior, owner was inadmissible and the attornment void. In Higgins v. Turner, 61 Mo. 248, it is stated: “A judgment against the lessor is the same thing as if he had granted by deed. It is, to be sure, acquiring title indirectly, and by operation of law from the lessor; but it comes through his act and consent or neglect, and is, therefore, the same in legal effect as if he had granted or devised the reversion.”

In the light of the foregoing authorities, it seems to us that what is meant by the words of the saving clause in section 6373, already quoted, is a sale under a deed of trust by which the purchaser is placed in privity with the landlord’s title. Or which is the same thing, the deed of trust must have been executed by the landlord, so that a sale thereunder extinguishes his title, and, consequently, that of his tenant. This construction, we think, will be aided by a further reference to other provisions of the statute. Section 6397 provides that, if anyone purchase lands occupied at the time by a tenant who shall thereafter fail to pay rent to such purchaser, the latter shall have the right to sue before a justice of the peace for the recovery of the possession. Section 6398 provides that, before such suit shall be commenced, the purchaser shall make demand of the' tenant of the rent and at the same time exhibit to him the deed under which he claims. Section 6373 provides what shall be stated in the complaint, and that, if upon the trial the plaintiff show that the party in possession rented or leased from a party claiming title to the premises by deed, and that the plaintiff has acquired the title of the original lessor by a deed or deeds regularly acknowledged, he shall be entitled to recover possession.

It is thus made clear that a derivative title will not support an action for the recovery of possession against an occupying tenant under one claiming title to the premises, unless the plaintiff has acquired that title by deed. It inevitably follows from this that,when the occupying tenant refuses to pay rent to the original lessor and attorns to one who has not by deed acquired the title of his lessor, though he may have acquired the fee to the premises, such attornment is void and affords him no protection in an action by the original lessor against him for the recovery of the possession. The sale and purchase under a deed of trust will not justify the occupying tenant in attorning to the purchaser, unless the sale be tantamount to an eviction. An eviction by one having a title paramount to that of the lessor under whom the tenant was let in possession discharges the rent. But a sale under a deed of trust must pass the title of the landlord to the purchaser. It must extinguish his title, for, unless it does so, it is not tantamount to an eviction and does not authorize the occupying tenant to attorn to the purchaser. If the title acquired be not that of the lessor, but is adverse to it, as is the cause here, then by the acquisition of such title the relation of landlord and tenant, as respects the possession is not in anywise thereby disturbed.

The title derived by Northup and Ritt under the Quimby deed of trust was adverse to that of the plaintiff, so that the attornment by the defendant to them was not a case within the saving clause of the statute and was therefore void.

But there is still another reason why the defendant’s construction of the statute can not be sustained. The statute forbids the merits of the title to be inquired into in an action for unlawful detainer, though evidence or proof of rights under derivative titles is admissible. R. S., secs. 5111, 5123. In such actions the matter of possession can only be litigated. In this case there is evidence tending to show that the plaintiff in ignorance of the existence of the deed of trust and in good faith made lasting and valuable improvements on the premises in dispute. Now, it is likely true that, if such be the fact, in case an appropriate action were brought against her by the holder of the adverse paramount title and that on the strength of that title a judgment were recovered against her for the possession, the court rendering such judgment, would allow-her to recover the reasonable value of her improvements, before requiring her to deliver possession. To turn her out of possession in this action would be to deny her the right to recover for such improvements. This concession is necessarily involved in the defendant’s contention, to uphold which might result in the grossest injustice to plaintiff. A construction of the statute under which such a result is probable can not be countenanced. It follows from these considerations that the instruction given for plaintiff was proper.

It is not perceived that the trial court erred in rejecting the defendant’s offers of evidence. It is true that such evidence tended to show that the title of Northup and Pitt, to whom .defendant attorned, was paramount to that of the plaintiff. But it also showed that it was adverse to that of the plaintiff. It was not shown that this title was consistent with that of plaintiff or that the holders, by its acquisition, were placed in privity with that of the plaintiff. The rejected evidence in no way tended to show that Northup and Pitt had acquired the plaintiff’s title by purchase, directly or indirectly, from him, or that hi's title had expired or run out, but, instead thereof, did tend to prove that the adverse paramount title had its inception in the Quimby deed.of trust long anterior to the execution and delivery of the deed under which plaintiff claims title and, therefore, according to the views of the law already by us sufficiently expressed, such offers of evidence were properly rejected.

The judgment will be affirmed.

All concur.