Young v. Smith

28 Mo. 65

• Court: Supreme Court of Missouri
• Decided: January 15, 1859
• Status: Published

Opinion

Scott, Judge,

delivered the opinion of the court.

The third section of the act concerning forcible entry and detainer describes two modes by which the wrong of an unlawful detainer may be committed.'’ To entitle a plaintiff to remedy for an unlawful detainer in the manner first mentioned in that section, no demand in writing is necessary. If the tenant holds over the premises after the termination of the time for which they were demised or let to him, he is subject to a suit for an unlawful detainer without any demand in writing for the delivery of the possession. This is evident from the words of the statute. A demand in writing is only necessary when any person wrongfully and without force shall obtain and continue in possession of the lands of another.

We do not see what a lease from Lewis to the defendant has to do with the case, as he acknowledged the plaintiff to be his landlord. There was no evidence given or offered that Lewis denied the right of the plaintiff. On the contrary, the. circumstances raise a strong presumption of a conveyance or sale of the premises by Lewis to Young, the plaintiff, and there is no pretence that there was any misrepresentation on the part of the plaintiff. There is no foundation in the evidence for the application of the law relative to the attornment by a tenant to a stranger. So far from it, the case furnishes an instance in which the rale is applicable, that a tenant can not dispute the title of h'is landlord. (Hall v. Butler, 2 Perry & Dav. 374 ; 10 Adol. & Ellis, 204.)

"When the term of a lease is to end on a precise day, there is no occasion for a notice to quit previously to bringing an ejectment, because both parties are equally apprised of the determination of the term. (Cobb v. Stoke, 8 East. 358.) In this case the lease was for a less term than one year. (Messenger v. Armstrong, 4 Term, 54; ib. 162.) Although the thirteenth section of the act concerning landlord and tenant, among other tenancies, allows a tenancy for less than one year to be terminated by a month’s notice to quit, yetj the section immediately succeeding enacts that no notice to' quit shall be necessary to or from a tenant whose term is to end at a certain time, or where by agreement notice is dispensed with. This is nothing but a principle of common law,1 and it is applicable to all tenancies without regard to their duration.

The doctrine of the case of Reed v. Holland, 11 Mo. 605, and others like it, that he only who has been in possession of land can maintain a suit for a forcible entry and detainer or of unlawful detainer, was changed at the last revision; (R. C. 1855, p. 794, § 36 ;) and now heirs, devisees, grantees and assigns may have these remedies.

Judgment affirmed;

Judge Richardson concurring. Judge Napton absent.