Holmes v. Guion

Currier, Judge, delivered the opinion of the court. The plaintiff, as assignee of a leasehold estate, sues in ejectment to recover possession of the premises described in the petition. The original lessor (the city of Carondelet), because of the non-payment of rent, had undertaken to forfeit the original lease, but the proceedings in that behalf were held to be ineffectual. (Graham v. City of Carondelet, 33 Mo. 262.) The plaintiff, however, and his tenants were put out of possession, and the premises passed into the possession of the lessor. Whereupon the plaintiff, October 6, 1863, made a tender in full of all rent in arrear, with the interest thereon, which tho city of Carondelet (the lessor) and those holding under it refused to accept. The plaintiff then, October 9, 1863, instituted this suit to recover back possession of the leasehold premises. After the suit had been pending some four years — to-wit: November 13, 1867— the lessor (the city of Carondelet) undertook to cure the defect in the proceedings to forfeit the lease by a fresh forfeiture of that date. ' This second forfeiture is urged as a defense to the present suit. It is claimed that the tender of October 6, 1863, although good and effectual as regards all rents and charges which had then accrued, was nevertheless insufficient to prevent a forfeiture for the non-payment of rent during the subsequent years. This assumes that rent accrued after the tender, for the non-payment of which the lessor was at liberty to forfeit the lease. But that is begging the question. Did any rent accrue during those subsequent years ? The answer admits that the defendants, who hold under the city of Carondelet, were in possession on the third day of October, 1863, and they have been in possession ever since, resisting the claims of plaintiff, as this record shows. The plaintiff and his tenants were ousted, and the city of Carondelet and 167 its grantees' have held, used, and enjoyed the premises during the whole period of time subsequent to the tender. Under these circumstances no rent accrued to the lessor against the plaintiff. It would be singular if a landlord, in the use and possession of property, could collect rent from a lessee, whom the lessor had wrongfully ousted and kept from the possession, use, and enjoyment of the leasehold premises, during the period the tenant was thus wrongfully deprived of the property. No reference is made to any principle or authority sanctioning such doctrine, and it can not be maintained. On the 13th day of November, 1867, no rent had accrued for the non-payment of which the lease could be forfeited, and the forfeiture of that date is therefore ineffectual and void. The remaining points of the case are fully covered by the decisions in Graham v. Carondelet, 33 Mo. 262, and Holmes v. Carondelet, 38 Mo. 551; and, upon the authority of these adjudications, the judgment of the court below is affirmed, the other judges concurring.