Lyon v. LaMaster

Sherwood, P. J. Ejectment for lots 6, 7 and 8, in block 50, in the St. Joseph extension addition to the ■city of St. Joseph.. The defendant was the tenant of Zimmerman, who transferred the lots by deed of quitclaim to plaintiff, and the defendant was duly notified of such transfer, and, it seems, acquiesced therein at the time of being informed thereof ; but, before suit brought, acted in a very different way. as will presently appear. I. The case turned in the trial court on the suffi-' ciency of the notice to quit served on the defendant by the plaintiff, and, as that court deemed the notice insufficient, the plaintiff was forced to take a nonsuit, with leave, etc. The action of the court in excluding the [614] notice to quit cannot be considered here, because no such point was made in the motion for a new trial. This has been ruled many times in this court. Vineyard v. Matney, 68 Mo. 105, and cas. cit. and numerous other cases. II. But, though we are thus precluded from discussing the sufficiency of the notice to quit, we are still at liberty to read the testimony introduced by the plaintiff, which was all that was introduced. Prom this it appears that the defendant, prior to suit brought, had leased the premises from one Albin, thus attorning to a stranger and repudiating the relationship theretofore existing between himself and the plaintiff. It is insisted on behalf of the defendant that the tenancy in question was one from year to year, and that, therefore, he was entitled under the provisions of section 3077 to three months’ notice. But it is quite immaterial whether he was a tenant of this sort, or whether he should be regarded as a tenant at will, and as requiring but one month’s notice to quit, under the provisions of section 3078, for the reason that, having disclaimed the title of his landlord, he was entitled to no notice at all, and so say all the books. 1 Woodfall’s Land. & Ten. 360, 361, 311; Sedgwick & Wait Tr. Tit. Land. [2 Ed.] secs. 387, 388, 369; 6 Am. & Eng. Encyclop. of Law, 238 n; 12 Am. & Eng. Encyclop. Law, 703 nj 2 Taylor, Land, and Ten., sec. 472, and cas. cit. As the result of these views, the judgmerb should be reversed and the cause remanded. All concu