Parsons v. Palmer

ELLISON- J. Plaintiff seeks to obtain possession of certain real estate in Buchanan county, which he alleges the defendant entered against his will and unlawfully detains. The judgment in the trial court was for the plaintiff. Plaintiff became the purchaser of the property at a sale under a deed of trust executed by defendant, who was admitted to have been the owner, to one Hedenberg. The deed of trust contained the following provision: “And the said party of the first part does further covenant and agree, that if a sale shall be made under the provisions of this deed of trust, then the said party of the first part, her assigns or legal representatives who may be in possession of the said premises at the time of this sale, shall become from the day of the said sale the tenant or tenants at will of the purchaser, at the monthly rent of eight dollars, payable monthly in advance, and shall and will remove at any time thereafter upon one month’s notice from said purchaser, without regard to any previous lease, contract or agreement, about the use or occupation of said premises.” Such provision had the effect of creating the relation of landlord and tenant between the purchaser under the deed of trust and the defendant. [Sexton v. Hull, 45 Mo. App. 339; Building Ass’n v. Murphy, 75 Mo. App. 57; Wade v. McCormack, 68 Mo. App. 12.] She was therefore entitled to one month’s notice to surrender possession. No notice was given and therefore plaintiff’s [53] case failed and the demurrer offered by defendant should have been sustained. But plaintiff insists that there was no showing made that defendant was in possession. It is true that no such affirmative showing appears; the defendant not introducing any evidence. But, as already stated, defendant was admitted to have been the owner of the real estate up to the sale under the deed of trust which she executed, which took place April 5, 1905, and plaintiff’s petition alleges she was in possession on the next day. As owner of the property she was presumed to be in possession. [Clark v. Insurance Co., 52 Mo. 272; McIntosh v. Rankin, 134 Mo. 345; Hickman v. Hickman, 55 Mo. App. 303.] Defendant therefore must be considered to have been in possession at the time of the sale and entitled to the benefit of the provisions of the deed of trust. There was no question of title made by the record. The title was not in dispute and the case was entirely one as to whether defendant was a tenant and entitled to a notice to quit. The judgment is reversed and the cause is remanded. All concur.