Opinion
No. 6912.
December 4, 1950.
APPEAL FROM THE CIRCUIT COURT, HOWELL COUNTY, GORDON DORRIS, J.
Esco V. Kell, West Plains, for appellants.
Robert L. Hyder, J. L. Bess, West Plains, for respondent.
This is an appeal from the judgment of the Circuit Court of Howell County, Missouri, sustaining a motion to dismiss defendants' appeal from a judgment in the Magistrate Court.
Plaintiff's amended complaint, filed in the Magistrate Court of Howell County, Missouri, May 5th, 1949, omitting the caption, is as follows:
"1. Plaintiff for her amended complaint, upon her oath states that on the 17th day of February, 1949, she purchased, for value, from one Frances Johnson and James Johnson, her husband, a certain town lot in the City of West Plains, to-wit: Lot 34, Paden's Subdivision of the West Half of the North-west quarter of Section 21 in Township 24, north of Range 8, west, in Howell County, State of Missouri, and received a warrantee deed for the same, which she immediately exhibited to defendants and demanded possession of said premises, or that they pay a rental of $20.00 per month from and after said date.
"2. Plaintiff states that at the time she purchased the premises aforesaid, the defendants occupied the same, as tenants at will, or squatters, and that the reasonable rental value of said property was and now is $20.00 per month, and that there is now due and wholly unpaid the sum of $40.00, for the first two months after she purchased said property, demand for which has been made and payment refused.
"3. Plaintiff further states that she has also demanded possession of said property of the defendants, for non payment of rent aforesaid, but that defendants have failed and refused to surrender possession of the same, or to pay the rental value thereof.
"4. Plaintiff says that she has sustained damages in the sum of $50.00 for the unlawful and wrongful detainer of the said premises, and for injuries thereto.
"Wherefore, plaintiff prays judgment in the sum of $40.00, for rental now due and for rental at the rate of $20.00 per month for every additional month they may occupy said premises, together with damages in the sum of $50.00, for the wrongful detainer of the said property and injuries thereto, together with the costs of this action."
The defendants filed an answer and counterclaim. In the answer they admit plaintiff purchased the property described in the amended petition and deny all the other allegations therein.
The counterclaim pleads that defendants hold possession of the property sued for under a written lease from a former owner and, by virtue of said lease, have a right to the possession of the property in question.
Plaintiff's reply denied the allegations pleaded in the counterclaim and denied that the defendants had a valid lease on the premises in question.
The Magistrate Court, on May 25th, 1949, rendered a judgment in favor of the plaintiff finding that plaintiff was entitled to recover the possession of the premises described in her petition and found for plaintiff and against the defendants on defendants' counterclaim. Then the court made this finding, "and the Court further finds that the rental value of said property is now $15.00 a month and that plaintiff have and recover from defendants rent at rate of $15.00 per month until possession of said premises are delivered to plaintiff together with the costs of this action."
On June 3rd, 1949, defendants filed in the Magistrate Court notice of appeal from said judgment and an appeal bond in the sum of $250.00, which bond was, by the court, approved and ordered filed.
It is the contention of the appellants, defendants below, that the action was brought under the Landlords and Tenants Act, Chapter 13, R.S.Mo. 1939, Mo.R.S.A.
To sustain this contention appellants rely on Sections 2994, 2996 and 2999, Laws of Missouri, 1945, page 1109, and Sections 3000 and 3001, Mo.R.S.A.
In Barclay v. Wyatt, 223 Mo.App. 1022, 14 S.W.2d 44, 45, the court states the law thus:
"It is urged that plaintiffs were not entitled to recover for rent under their petition. We have in this state a statute which permits a landlord to recover possession of premises for rent in arrears, in which action he may also recover his debt for the amount of rent then due. Sections 6901-6903, R.S.Mo. 1919 [Mo.R.S.A. §§ 2994-2996]. In this action he is required to allege: (1) The terms on which the property is rented; and (2) the amount of rent due; (3) that same has been demanded of tenant and payment has not been made; (4) a particular description of the property rented. The petition in this case contains all the foregoing allegations. However, the petition also shows on its face that plaintiffs were not the original lessors of the land, but acquired title thereto after the aforesaid lease was made and after defendant had entered into possession of the premises. It has been held that, in order for a purchaser to recover rent and possession of land under this section, he must, in addition to the formal averments required by the statute, allege facts `from which the relation of landlord and tenant could have been inferred.' Duke v. Compton, 49 Mo.App. 304, loc. cit. 310.
"In other words, a purchaser of leased premises must allege and prove an attornment to him by the tenant before he may recover rent under section 6901. If the tenant refuse to pay rent or attorn to the purchaser of the reversion, he has a remedy under sections 6906-6908, R.S.Mo. 1919 [Mo.R.S.A. §§ 2999-3001]; but under such circumstances he may recover possession only. Anselm v. Groby, 62 Mo.App 421; Winkelmeier v. Katzelburger, 77 Mo.App. 117."
In the case at bar the petition does not state a cause of action under Section 2994, Laws of Missouri, 1945, page 1109, for the reason that it shows that the relation of landlord and tenant did not exist and for the further reason that the petition did not state the terms of the lease under which defendants held the property nor the exact amount of rent due. McIlvain v. Kavorinos, Mo.App., 212 S.W.2d 85.
Section 2996, Laws of Missouri, 1945, cited by appellants, merely relates to the judgment to be rendered by the Magistrate in a trial had under Section 2994, so cited.
Section 2999, Laws of Missouri, 1945, page 1109, reads as follows: "If any person purchase lands or tenements occupied at the time of such purchase by any tenant, lessee or sublessee, who shall, at any time thereafter, fail to pay rent to such purchaser, the person purchasing such property shall have the right, upon such failure, to commence proceedings before a magistrate to recover possession, as above provided."
Section 3000, Mo.R.S.A., states: "Before such proceedings are commenced, the plaintiff or his agent shall make a demand of rent, as provided, and, at the time of making the demand, shall exhibit to the tenant or person in possession of the premises the deed under which he claims title, and if payment be then refused, the owner may commence his action as aforesaid."
Section 3001, Mo.R.S.A., reads as follows: "It shall be sufficient for such person to file his complaint, verified by affidavit, stating by whom the premises were leased, and the terms of such lease or renting, and how he claims title to the same; and upon the trial of the cause, if the plaintiff show that the party in possession, or those under whom he claims, 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."
The petition at bar states that respondent acquired the property in question by warranty deed from Frances Johnson and James Johnson, on the 17th day of February, 1949; that, at the time of purchase of the premises, appellants occupied the same as tenants at will or squatters; that the reasonable rental value of said property was $20.00 per month and that, at that time, there was due an unpaid $40.00 for rent for the first two months after the purchase of the property; that demand had been made for such rent and payment refused.
The petition states that, upon the purchase of the property, respondent immediately exhibited to appellants her deed to the property and demanded possession of the premises or that the appellants pay rent of $20.00 a month from and after said date.
We find that, undoubtedly, respondent was basing her cause of action upon these three sections of the statute and this finding is further evidenced by the fact that the original summons, issued by the Magistrate Court, was a summons under the form of rent and possession and not unlawful detainer.
A purchaser of premises occupied by a tenant or lessee, at the time of his purchase, may maintain this proceeding against any such tenant, or lessee who fails to pay him the rent accruing after his purchase; but before commencing the proceeding, he must make a demand of the rent due him, and at the same time exhibit to the tenant, or person in possession of the premises, the deed under which he claims, and if the payment is then refused he may commence his action. Winkelmeier v. Katzelburger, 77 Mo.App. 117.
The action authorized by section 2994, providing for the recovery of rent due from a tenant to his landlord, is distinct and separate from the action authorized by these sections, empowering a purchaser of land in the possession of a tenant to recover possession on the tenant's failure to pay rent, and the two actions require different averments and different proof, and a plaintiff cannot recover under the one section or the other as his evidence may warrant. Duke v. Compton, 49 Mo.App. 304.
Purchaser takes the same remedy that his vendor had. Kelly v. Clancy, 15 Mo.App. 519.
A purchaser of leased premises, to whom tenant refuses to attorn or pay rent, can recover possession only, under the provisions of section 2999 and sections 3000 and 3001. Barclay v. Wyatt, 223 Mo.App. 1022, 14 S.W.2d 44.
In the petition filed by respondent herein, she does not plead the terms of the lease between the original lessor and the appellants, nor does she demand rent due under such lease but she pleads that she demanded $20.00 per month from the date of presenting her deed showing her ownership. Therefore, she does not rely for recovery upon the contract of lease between the original lessor under whom she claims title and the lessee but she demands rent on an entirely new contract and, therefore, the claim does not state a cause of action even under this section.
It is the law that respondent is given the right, under the purchase from the lessors, to collect rents and to have the same remedy that the lessors have but, in this petition she claims a greater remedy than that which her vendors had who were lessors in this case. Therefore, we believe that this claim does not state a cause of action under this section.
Section 3000 of the statute provides that plaintiff shall make a demand of rent, as provided, which clearly means that the respondent in this action should have made a demand for the rent provided in the lease between the respondent's vendor and appellants.
Respondent contends first, "This is, and has been since its institution, an action in unlawful detainer."
It was held in McIlvain v. Kavorinos, 358 Mo. 1153, 219 S.W.2d 349, 351, as follows: "The statutes providing for the practice and procedure in unlawful detainer have been held to constitute an exclusive and special code within itself. Gary Realty Co. v. Kelly, 278 Mo. 450, 214 S.W. 92. The statutory provisions for the action of unlawful detainer are set out in detail in Article 2 of Chapter 12, R.S. 1939, Mo.R.S.A., as reenacted, 1945, Laws, p. 1089, Mo.R.S. A. § 2835 et seq."
This case holds that all sections of the statute must be read together.
The remedy is statutory and in derogation of the common law and must be strictly construed.
Unlawful detainer actions are defined in Section 2833, Mo.R.S.A. The section reads as follows: "When any person shall willfully and without force hold over any lands, tenements or other possessions, after the termination of the time for which they were demised or let to him, or the person under whom he claims; or when premises are occupied incident to the terms of employment and the employee holds over after the termination of such employment; or when any person wrongfully and without force, by disseisin, shall obtain and continue in possession of any lands, tenements or other possessions, and after demand made, in writing, for the delivery of the possession thereof by the person having the legal right to such possession, his agent or attorney, shall refuse or neglect to quit such possession, such person shall be deemed guilty of an unlawful detainer."
Unlawful detainers are of two kinds: 1. A willful holding over without force, after the expiration of a term. 2. A wrongful disseisin without force of a prior possessor. In cases of the first class, no demand in writing for the delivery of possession is required before the institution of the suit. In cases of the second class, such a demand is indispensable.
It will be noted that the relation of landlord and tenant is unnecessary in actions under the second clause of the statute, to-wit, against persons wrongfully, by disseisin, obtaining and withholding possession. Bruner v. Stevenson, Mo.App. 73 S.W.2d 413.
The term "disseisin" as used herein, applies to any entry which is wrongful but not forcible upon the actual possession of another. Therefore, the petition herein filed by respondent, if it states a cause of action in unlawful detainer, does not do so under the second clause of the unlawful detainer statute.
If there is a cause of action stated in unlawful detainer it must be under the first section of the statute, to-wit, a willful holding over without force, after the expiration of a term.
Under this first clause, in order that the action for unlawful detainer may be maintained, the relation of landlord and tenant must exist.
The law is declared in Bruner v. Stevenson [Mo.App. 73 S.W.2d 414], supra, as follows: "Under the first clause of the statute unlawful detainer does not lie unless the relationship of landlord and tenant exists between the parties, whereas, under the second clause, such relationship need not appear. Aubuchon v. Foster, 202 Mo.App. 225, 215 S.W. 781; Howes v. Muir, Mo.App., 226 S.W. 610."
In the second paragraph of respondent's petition, she alleges that appellants occupied the premises as tenants at will or squatters.
In Barber v. Todd, Mo.App., 128 S.W.2d 290, 294, it is stated: "Under this record the plaintiffs in error were tenants at will and therefore since the owner made proper demand would be entitled to the possession of the premises and to maintain this action."
A tenancy at will may be terminated, by the person entitled to the possession, by giving one month's notice, in writing, to the person in possession requiring him to remove. Section 2971, Mo.R.S.A.; Allen v. Ray, 96 Mo. 542, 10 S.W. 153.
So it will be noticed in the case at bar that no notice to terminate the tenancy at will is pleaded in the petition.
Of course, under the facts pleaded in the petition, the appellants were not squatters. A squatter may be defined to be a person who settles or locates on land, inclosed or uninclosed, with no bona fide claim or color of title and without the consent of the owner. A person who commenced occupancy with the permission of the landlord can, in no way, be a squatter.
It is also held that under the first clause of the unlawful detainer statute relating to holding over after the termination of the demise that unlawful detainer does not lie unless landlord-tenant relationship exists. Bruner v. Stevenson, supra; Forder v. Handlan, 155 Mo.App. 453, 134 S.W. 1110; Barber v. Todd, supra.
We cannot agree with respondent that her claim states a cause of action in unlawful detainer. The facts pleaded show appellants were in lawful possession of the premises sued for. In order to terminate such tenancy, it would be necessary to give one month's written notice under the law and, therefore, there was no unlawful holding over in order to warrant unlawful detainer.
The facts further show that the relation of landlord and tenant did not exist between appellants and respondent because there was no attornment by the paying of rent and therefore an action of unlawful detainer will not lie.
We find that the petition attempted to state a cause of action under Section 2999, Laws of Missouri, 1945, page 1109, and Sections 3000 and 3001, Mo.R.S.A., and not under the unlawful detainer statute as contended by respondent. Under Landlord and Tenants, Sec. 3002, Laws of Missouri, 1945, page 1110, it is provided that appeal shall be taken as provided by law in other civil cases but no appeal shall be allowed the defendant, unless he give bond, with security sufficient to secure the payment of all damages, costs and rent then due and to accrue, and with condition to stay waste. Section 130, page 800 of the Laws of Missouri, 1945, provides that ten days is allowed in which to file notice of appeal, therefore, the bond in this case was filed within ten days from the date of rendition of judgment and was timely and the trial court erred in dismissing the case because the bond was not given within six days as required under the Unlawful Detainer Statute.
Judgment reversed and remanded.
VANDEVENTER, P. J., and BLAIR, J., concur.