Opinion
June 19, 1939.
1. — Venue. Application for change of venue was properly overruled where applicant failed to annex an affidavit made by himself, his agent or attorney, to truth of petition and that affiant had just cause to believe that he could not have a fair trial on account of cause alleged.
2. — Landlord and Tenant. Where plaintiffs in suit for unlawful detainer were directed by sublessee to owner of lease for purpose of purchasing same, and where such purchase was made and plaintiffs were paid accrued rent due them from occupant of building as the new landlords, and where plaintiffs entered into possession, and where thereafter sublessee claimed adversely to plaintiffs, took possession and retained possession adversely to rights of plaintiffs, relationship of landlord and tenant was not established between plaintiffs and sublessee and occupant.
3. — Appeal and Error. Defendants, sublessee and occupant of building, in unlawful detainer suit by owner of lease and building, cannot urge on appeal that no notice was served upon them, where actual possession was delivered to plaintiffs by occupant claiming only as tenant of sublessee, and where demand was introduced in evidence and no objection was made at time; when demand and proof of service were offered and no objection made, point is raised too late on appeal that party to suit served demand.
4. — Landlord and Tenant. Suit in unlawful detainer by owner of lease against sublessee and tenant claiming under sublessee is not an action between landlord and tenant, so that it was not necessary for plaintiffs to exhibit their deed to property when demand for possession was served, and statute in that behalf does not apply; further, when possession was delivered to plaintiffs before either defendants claimed adverse right of possession, and when no objection was made at trial, defendants by their conduct at time and prior to service of demand for possession waived any such complaint.
5. — Landlord and Tenant. Where evidence in unlawful detainer suit by owner of lease and building against sublessee and tenant claiming under sublessee was uncontradicted that plaintiffs entered into possession and collected rents from tenant prior to sublessee's assertion of title, and where no demurrer to petition was filed, contention that plaintiffs failed to plead and prove their possession of the property within three years prior to filing of suit is without merit.
6. — Trial. Instruction directing verdict for plaintiff in unlawful detainer suit, where verdict and judgment gave plaintiff right of possession of all of real estate and buildings except that portion subleased to one defendant, held properly given, under undisputed documentary evidence, where objection to instruction did not complain because of any specific grounds.
7. — Witnesses. Witnesses in unlawful detainer suit were not incompetent because they received title to leased property in suit from common source, through assignment from deceased owner of lease and his assignees, under Section 1723, Revised Statutes Missouri, 1929.
Appeal from the Circuit Court of Buchanan County. — Hon. F.J. Frankenhoff, Judge.
AFFIRMED.
Sterling P. Reynolds for appellants.
(1) The court had no jurisdiction to proceed to try this case because of the application for a change of venue, filed the day the case was filed in the Circuit Court. R.S. 1929, sec. 911; Douglas v. White, 134 Mo. 228; Railroad v. Mining Company, 139 Mo. App. 272; State ex rel. v. Bruce, 55 S.W.2d 954. (a) The case of Lee v. Smith, 84 Mo. 304, is mere obiter, and Section 910, R.S. 1929, is now superseded by section 911, R.S. 1929. (2) The court had no jurisdiction to proceed to judgment in this cause for the reason that plaintiffs' evidence shows beyond doubt that the relation of landlord and tenant existed at all times between the parties with the tenant paying the landlord according to the terms of his lease. Secs. 2447, 2584, R.S. 1929. (3) Under the petition filed herein, it was necessary to give written notice, and this notice is jurisdictional, and it must be served in the manner pointed out by the statute. R.S. 1929, sec. 2481; Hyde v. Goldsby, 25 Mo. App. 29; Madison County Bank v. Suman, 79 Mo. 531; Haumeller v. Ackerman, 150 Mo. App. 141; Williams v. Dillenhoeffer, 188 Mo. 134; State ex rel. v. Caldwell, 276 Mo. 631. (4) This is a suit under the second subdivision of section 2447, R.S. 1929, which requires notice to be given before suit is brought, and section 2481, R.S. 1929, provides that the same shall be personal notice, and shall be served by delivering a written copy to the person in possession or some person above 15 years old being on said premises. The evidence of plaintiff Smith and defendant Browne shows that notice was given to defendant Browne through the post office, which is no service. R.S. 1929, sec. 2481; Hyde v. Goldsby, 25 Mo. App. 29; Madison County Bank v. Suman, 79 Mo. 531; Haumueller v. Ackerman, 150 Mo. App. 141. (5) It is an elementary principle of law from Blackstone till now that the plaintiff cannot serve his own process, as was done by the plaintiffs in this case. And the court is without jurisdiction for that reason. State ex rel. v. Duncan, 195 Mo. App. 541. (6) The record shows that Smith and Snyder had a paper writing from Faucett, purporting to convey his right to the filling station alone. Before they can maintain a suit, even if they had the right under the above pretended assignment they should give written notice and exhibit their title at the service of notice. They did neither and the court acquired no jurisdiction. The failure to give proper notice and exhibit their title is fatal to this case, and the court acquired no jurisdiction. Sec. 2482, R.S. 1929. (7) Service by mail will not do in an unlawful detainer suit, and gives the court no jurisdiction. Hyde v. Goldsby, 25 Mo. App. 29; Madison County Bank v. Suman, 79 Mo. 531. (8) The complaint filed on the 20th day of July, 1938, does not state a cause of action. Plaintiff must plead and prove possession within three years prior to July 20, 1938. This is not alleged or proved. Sec. 2468, R.S. 1929. (9) Instruction 1 given by the court for plaintiffs is erroneous because it assumes and tells the jury that notice was given. There was no notice given.
Randolph Randolph for respondents.
(1) The jury by its verdict as instructed by the court gives plaintiff possession of the entire 240 feet by 133 feet, when all the evidence and the admission of plaintiffs show that plaintiffs were not entitled to hold all of said strip of ground, and the statement in unlawful detainer, filed herein, does not call for the entire strip of ground. (2) Plaintiffs' Exhibit 8 is a pretended lease by W.H. Faucett to plaintiffs, dated June 15, 1938. Before this lease was made, W.H. Faucett and wife leased the same property to Sharp, and that lease was and still is in force. (3) Defendants' Instruction A should have been given because under the law and the evidence plaintiffs were not entitled to recover because the court was without jurisdiction. (4) The court erred in overruling defendant's motion for new trial because under the law and the evidence the plaintiffs were not entitled to recover. (5) None of the assignments shown, from Sharp to Agee, Agee to Faucett, from Faucett to Smith and Snyder, conveys any right or title to the tract leased by W.H. Faucett and wife to Sharp, and recorded in Book 665 at page 26 of the records in the Recorder's Office in Buchanan County, Missouri. (6) The court should have held this case without trial until the suit to settle the equities between parties in the case now pending in this court, No. 19438. Ridgley v. Stillwell, 28 Mo. 406; Gruenwald v. Schaales, 17 Mo. App. 324; Green v. Conway, 91 Mo. App. 394; State ex rel. v. Taylor, 242 S.W. 997; Morris v. Davis, 66 S.W. 883; R.S. 1929, sec. 2458. (7) The evidence offered by defendants showed that plaintiff were not the owners of said real estate, and the court erred in excluding the same. (8) The plaintiffs, Smith and Snyder, and their assignors, Agee and Faucett, all are incompetent witnesses because they were claiming under G.E. Sharp, deceased, and defendant Spencer is claiming also under G.E. Sharp, deceased, and for that reason, plaintiffs, Agee and Faucett are incompetent. Sec. 1723, R.S. 1929. (a) The petition for change of venue is insufficient. The affidavit attached to the petition does not meet the requirements of sections 909 and 910, R.S. Mo. 1929. State ex rel. State Highway Commission v. Hartman et al., 44 S.W.2d 169, l.c. 170. (b) The preliminary notice to quit possession cuts no figure whatever in this case, as Browne pursuant to said notice, abandoned possession to these plaintiffs, and then he and his co-defendant Spencer made a re-entry (c) Following the re-entry, immediately, the demand provided for in Section 2447, was made before the filing of the complaint in unlawful detainer before the Justice of the Peace, and the service of it was proven as provided in Section 2481. (d) This demand was clearly in proper form, and there is an affidavit in proper form attached to it that it was served. R.S. Mo. 1929, sec. 1506; Price v. Johnson Co., 15 Mo. 433, l.c. 441; Hazeltine v. Reusch, 51 Mo. 50, l.c. 51; McKenny v. Clark, 84 Mo. App. 624, l.c. 627; Sansone v. American Mut., 20 S.W.2d 293. (e) The appellants make the contention that the demand required under section 2447, R.S. Mo. 1929, preliminary to filing an unlawful detainer suit, cannot be served by the party who expects to be the plaintiff in the suit. No such objection was made in the lower court. The only objection that was made was "because it does not describe the property or any part that they have brought suit for." This objection does not raise the question they now present. (f) Possession was delivered under the original notice. After it was delivered Myron Spencer immediately took possession. For that reason the demand which was made does not require the exhibition of any lease, or evidence of title. (g) The tenant's possession is the landlord's possession, no matter how long the tenancy continues. Kaulleen v. Tillman, 69 Mo. 510. Section does not apply where tenant has held possession under plaintiff's grantor, or under the prior owner. Gillett v. Matthews, 45 Mo. 307. (h) Appellants did not object to Instruction 1 nor to the Instruction 2, and cannot now be heard to complain. State v. Walzenski (Mo.), 105 S.W.2d 905, l.c. 906, 907; Donnelly v. Missouri-Lincoln Trust Co., 144 S.W. 388, 239 Mo. 370; State ex rel. City of St. Louis v. Mo. Pac. Ry. Co., 174 S.W. 73, 262 Mo. 720; Brewer v. National Union Building Association, 64 Ill. App. 161. The court refused to grant an injunction, and the only bond that was given was the ordinary appeal bond. R.S. Mo. 1929, secs. 1507 and 1508; State ex rel. v. Lamb, 141 S.W. 665, 237 Mo. 447; Bayless v. Gibbs, 158 S.W. 590, 251 Mo. 503; Com. Co. v. Spencer, 236 Mo. 608. (8) Appellants seem to think that if a dead man appears in a chain of title to real estate that none of the subsequent grantees or grantors can testify whether or not they have any interest in the proceeding. Section 1723, R.S. Mo. 1929, bears no such construction.
This is an unlawful detainer suit brought by plaintiffs, Smith and Snyder against defendants, Spencer and Browne. The cause was tried to a jury in the circuit court and resulted in a directed verdict for plaintiffs. From the resulting judgment defendants appeal. We will refer to the parties herein as plaintiffs and defendants.
The evidence on behalf of plaintiffs consisted of the testimony of a number of witnesses and also the introduction of a number of written leases, contracts and assignments. The facts which the above evidence tended to establish substantially the same as are those set out in our opinion handed down April 3, 1939 (not yet published), in the companion case of Spencer and Browne v. Smith et al., (Kansas City Court of Appeals. Docket No. 19438). The facts, briefly stated, are as follows: W.H. and Sarah Faucett are the owners of certain lands which were leased to G.E. Sharp, who assigned to his wife. Plaintiffs, by assignment of various intermediary holders, became the owners of the lease to Sharp, immediately after Sharp leased the tract he subleased a portion thereof, sixty-four feet square, to M.C. Spencer, one of the defendants herein. Sharp erected a filling station on the portion of the leased premises he retained, which station is the real subject of controversy herein, and Spencer erected a garage on the sixty-four foot tract subleased to him. Below is a plat showing the entire tract leased by Faucett to Sharp, the portion thereof subleased to Spencer, and the location thereon of the filling station and garage.
Plaintiffs became the owners of the filling station and of the lease on which it is built, exclusive of the Spencer sublease. Browne was the tenant of the filling station property and, upon demand, paid accrued rent thereon to plaintiffs, delivered possession to them, and agreed to sell and deliver to them the stock and fixtures, which were his. At that stage defendant Spencer claimed the filling station, the lease on the lands upon which it was located, and the right of possession. Plaintiff served on both Spencer and Browne written demand for possession, which was denied. Plaintiffs thereupon filed this suit.
The only evidence offered on behalf of defendants was the instrument whereby Sharp subleased to Spencer the sixty-four foot tract above mentioned, the petition and answer in the case of Spencer and Browne v. Smith et al., supra, which was an equity suit that had for
its purpose the reformation of the Sharp-Spencer sublease, and the record of the circuit court in the latter case which established that Spencer and Browne had appealed to this court. Upon objection duly made this offer of evidence was ruled adversely to defendants herein and they rested.
Defendants contend that the court erred in failing to sustain their application for change of venue. The same point was urged in the case of Spencer and Browne v. Smith et al., supra, and was ruled against present defendants because of the fatal insufficiency of the application and the affidavit in support thereof. The application and affidavit filed in this case are insufficient because of the identical grounds assigned in our former opinion to which ruling we refer for the sake of brevity.
The second assignment of error is that plaintiffs' evidence shows that the relationship of landlord and tenant existed between plaintiffs and defendants herein. The evidence discloses that plaintiffs were directed by Spencer to the owner of the lease and building for the purpose of purchasing same; that they purchased from the owner to whom they were directed by Spencer; that they were paid accrued rent due from Browne to them as the new landlords; that they entered into possession of the property; and that thereafter defendant Spencer claimed adversely to them, took possession and now retains possession adversely to the rights of plaintiffs. This does not establish the relationship of landlord and tenant.
Defendants' point three is that no written notice was proved. Such notice, as well as demand, was proved. The preceding paragraphs, we think, fully answer this contention and repetition would serve no useful purpose.
Point four is that no notice was properly served on Browne. Browne delivered actual possession to plaintiffs, and thereafter, and now, only claims as the tenant of Spencer. Prior to bringing suit both defendants were personally served with written demand for possession. The demand was introduced in evidence and no objection, such as is now urged, was made at the time. The point is ruled against defendants.
Under their point five defendants urge that service of the demand was bad because served by a party to the suit. When the demand and proof of service attached thereto was offered in evidence no objection to its reception was made on these grounds and, if such objection would have been meritorious if timely made, it is now too late to raise it. The trial court is entitled to hear the reasons for objections to evidence before ruling thereon. The contention is without merit.
Point six is based upon the contention that plaintiffs failed to exhibit their deed to the property when demand for possession was served. This is not an action between landlord and tenant, and the statute in that behalf does not apply. [Tucker v. McClenney, 103 Mo. App. 318, l.c. 322.] Possession had been delivered to plaintiffs before either defendant claimed a right of possession adverse to the rights of plaintiffs. Furthermore, no objection or contention of this character was raised below; and defendants, by their conduct at the time of and prior to services of demand for possession waived any such complaint.
Defendant's point seven reiterates the contention heretofore discussed relative to service of notice, which defendants seem to have confused with the service of written demand. At any rate the contention has previously been disposed of herein.
Point eight is to the effect that plaintiffs failed to plead and prove their possession of the property within three years prior to the filing of this suit. No demurrer to the petition was filed. There was evidence which was not contradicted that plaintiffs entered into possession and collected rents from Browne prior to Spencer's assertion of title. The contention is without merit.
Complaint is made as to the form of verdict. Plaintiffs did not claim any right to possession of the sixty-four foot square tract whereon is located the garage of Spencer, as shown in the above plat. The verdict and judgment give plaintiffs the right to possession of the remainder of the real estate described in said plat and petition, together with the improvements thereon, and money judgment for the unlawful detainer.
Defendants complain of the giving of the instruction which directed a verdict for plaintiffs; but they do not complain because of any specific grounds. The instruction was properly given, under the undisputed documentary evidence in the case.
Complaint is made that the trial court should not have tried and determined this case until the case of Spencer and Browne v. Smith et al., supra, was finally disposed of on appeal. The record shows that the equity case was determined in the lower court and appeal sued out prior to the trial of this case, although this case was actually filed prior to the filing date of the equity case. Defendants herein posted no indemnifying bond and have already received as much equity as the facts disclosed by the evidence in these cases show them to be entitled to receive. [See Spencer and Browne v. Smith, et al., supra.]
Complaint is made that certain persons who testified were incompetent witnesses merely because they received title to the leased property from the common source, that is through assignment of G.E. Sharp and his assignees, G.E. Sharp being deceased. The contention is not well made. [Spencer and Browne v. Smith et al., supra.]
There are some other numbered assignments but we think they are largely duplications of those herein discussed, and are without merit.
The judgment should be affirmed. Campbell, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. Judgment is affirmed. All concur.