Moston v. Stow

BROADDUS, J.

— This suit was commenced October 18, 1S99, before a justice of the peace and appealed to the circuit court where it was tried and finding and judgment had for the plaintiff; from which the defendant appealed.

In the circuit court the defendant, on the third day of April, 1900, filed a motion to dismiss the appeal on the ground that the affidavit for appeal failed to show that the plaintiff, who had appealed from the finding in the justice’s court, had complied with the statute regulating appeals, in that the affi-. davit did not state whether she had appealed from the merits, or from a judgment taxing costs. On the same day the court overruled the defendant’s motion and on the next day the plaintiff, by leave of court, filed an amended affidavit in due form. Afterwards, the parties went to trial.

The defendant contends that the court committed error in permitting plaintiff to amend her affidavit after the motion to dismiss her appeal had been determined. It is true that *558 under section 4012, Revised Statutes 1899, tbe respondent should have amended her affidavit before the motion to dismiss was determined, yet it has been held that where the parties afterwards appear, as in this case, and go to trial, the defect in the manner of taking the appeal is waived. See Lowry v. Phillips, 57 Mo. App. 232 , and cases there cited.

The suit was for unlawful detainer. In 1896, the plaintiff rented the land in controversy for a period of one year to N. L. or Nelson L. Stow, the term beginning on the first day of October, 1896. The premises consisted of a farm containing 160 acres situated in Maries county, Missouri. The said Stow, on the fifteenth of September, 1897, rented the premises to defendant Harry J. Stow and put him in possession, in which possession he continued as the tenant of said N. L. Stow until the commencement of this suit.

On the trial, the defendant offered in evidence a deed of trust on the land, executed by the plaintiff and one Joshua Best to secure the payment of a note for $225, payable to one T. A. Bray. Said deed of trust is dated on the nineteenth day of September, 1881; also a trustee’s deed dated July 17, 1897, to said N. L. Stow to the land, in dispute, wherein it was shown that the deed of trust had been foreclosed by the trustee and he, the said N. L. Stow, had become the purchaser at the sale. Upon the objection of the plaintiff, the court excluded both of said deeds, but we do not know upon what grounds this evidence was excluded. We presume, however, from the argument of counsel, that it was for the reason that the plaintiff, being a married woman, they were void as to her, the estate being a common-law estate and not an estate to her sole and separate use.

The object in introducing the deeds was to show that the land in controversy was bought in by the tenant, which had the effect of extinguishing the tenancy. The plaintiff has cited many cases upon the theory that the deeds of the plaintiff, she being a married woman, were void as to her; but it *559 is sufficient to say that the Supreme Court of the State, in a recent utterance construing the statute in relation to the rights of married women, held that her deed conveying her common-law estate is not void, and that the courts will enforce them against her. Brown v. Dressler, 125 Mo. 589 .

- The evidence showed that at the time the plaintiff made. said deed of trust she only owned 80 acres of said farm, and that one Joshua Best owned the other 80 acres; but that both joined in the execution of the same. Afterwards, however, and before the sale made thereunder by the trustee, she became the owner of the entire tract.

As to the 80 acres owned by the plaintiff at the time she made said deed of trust, the purchase by N. L. Stow, the tenant, of her interest at the trustee’s sale, had the effect of extinguishing the tenancy. Gunn v. Sinclair, 52 Mo. 327 ; Zeysing v. Welbourn, 42 Mo. App. 352 ; Higgins v. Turner, 61 Mo. 249 . It was therefore competent for the defendant to show by the written leases offered in evidence by him that he was occupying the premises as the tenant of the said N. L. Stow.

As to the other 80 acres of said tract of land, although plaintiff was not the owner at the time the deed of trust was given, she and Best, the owner of said 80 acres, joined in said deed to secure the note mentioned, and she became the owner of Best’s interest, thereby becoming the owner of the entire tract before the foreclosure. Hnder such circumstances we believe the foreclosure had the effect of extinguishing the tenancy to said part of said land, as well as to that owned by the plaintiff at the beginning.

Instruction No. 2, given on the part of the plaintiff, was not the law. Damages in unlawful detainer can be recovered only from the date of demand for possession and not from the date when the defendant went into possession. Finley & Miller v. Magill, 57 Mo. App. 481 .

For the reasons given the cause is reversed.

All concur.