Equity Building & Loan Ass'n v. Murphy

Bond, J. — This is an action for unlawful detainer begun before one justice of Greene county, taken by change of venue to another, and after judgment of dismissal, appealed to the circuit court. On the trial plaintiff adduced evidence tending to prove the allegations contained in the following petition: “Plaintiff states it is a corporation, organized under the laws of Missouri, and that on the 27th of March, 1893, defendants 'Mary E. and M. J. Murphy executed a deed of trust conveying to R. G. Parker, as trustee, lot 45 in block 3, in Hobart’s second addition to the city of North Springfield, now a part of the city of Springfield, in Campbell township, Greene county, Missouri, with the buildings and appurtenances thereto belonging, for use and benefit of plaintiff, and by the terms of said deed defendants were to remain in possession of said premises as the tenants from month to month of said plaintiff, and to pay five dollars per month beginning when- six months? dues and interest were unpaid; that said tenancy expired on the 22d day of May, 1897; that ever since that time plaintiff has been and is now entitled to the possession of said premises ; that afterward said deed of trust was foreclosed and a trustee’s deed thereunder duly executed to plaintiff, and on the 22nd of May, 1897, plaintiff exhibited [60] said trustee’s deed to defendants and demanded possession of said premises and same refused, and then payment of rent from them, and same refused by defendants ; that defendants willfully and unlawfully hold over and detain, the possession of said premises from plaintiff and that plaintiff has sustained damages by reason of said unlawful holding over in sum of one hundred dollars. Wherefore plaintiff demands judgment for possession of said premises and said damages.” At the conclusion of the testimony the trial court, over plaintiff’s objection, gave the following instruction: “The court instructs the jury that under the evidence in this case your verdict must be for the defendant.” Verdict and judgment were rendered in accordance. Plaintiff appealed to this court and now challenges the correctness of the above instruction. As to the nature of the relation created by the deed of trust referred to in the petition, the recitals are, to wit: “And likewise if said parties of first part shall fail to pay the interest on said note when due, or fail to pay their monthly dues as stockholders as aforesaid, as they accrue, then and in either of said events this deed shall remain in full force and said Mary E. and M. J. Murphy or their assigns shall be the tenants of said Equity Building and Loan Association of Missouri, from month to month, at a monthly rental of five dollars per month, beginning when amount due and unpaid shall equal six months’ dues and interest, with the right to remain in possession of said property only so long as the said Mary E. and M. J. Murphy pay the monthly dues and interest due the association. But upon failure to pay said interest and dues, the said association, as lessor of said property, or its assignees, shall have the right to enter and take possession of the same without notice.” The effect of this language in the deed of trust was to make the defendants the [61] tenants of plaintiff for the rent reserved, payment to begin after arrearages of dues and interest for six months,, and to continue so long as defendants should pay the rent reserved. It was competent for the parties by their contract to create such a tenancy and they must abide its consequences. Wade v. McCormack, 68 Mo. App. 12. One of these is the right of any person having the legal right to the possession of the premises under a deed of foreclosure, to enforce that right against the defendants by an action of unlawful detainer as for a holding over under a lease. Sexton v. Hull, 45 Mo. App. 339. There is no merit in the position of respondents that notice should have been given before the institution of this action, for the reason that the trust deed contained an express agreement dispensing the notice. R. S. 1889, sec. 6372. Defendants, however, are in no position to complain of want of notice, for the reason that they disclaimed plaintiff’s title. Lyon v. McMaster, 103 Mo. 614. Neither was any written demand required under the clause of section 5089, Revised Statutes 1889, permitting an action of unlawful detainer for mere holding over by the tenant. Young v. Smith, 28 Mo. 65. It is finally insisted by respondent that the petition in this case fails to state any cause of action, in that it does not allege the beginning and end of defendants’ tenancy. We are unable to concur in this view. The petition does allege explicitly that the tenancy expired on the twenty-second of May, 1897. This necessarily implies that it existed prior to that date in accordance with the terms of the contract contained in the trust deed executed by .defendants on March 27, 1893. Our conclusion is that the court erred in the above instruction. The judgment will therefore be reversed and the cause remanded. All concur.