This suit was brought before a justice of the peace of Greene County under the provisions of Sections 6901 and 6903, Revised Statutes 1919, for the possession of certain real estate for non-payment of rent, and for the rent accrued and unpaid. The plaintiff had judgment for possession, and for $60, the amount of the unpaid rent. Defendant gave the bond as provided by Section 6909, and was. allowed an appeal to the circuit court. In the circuit court defendant demanded that the cause be tried to a jury. This was overruled by the court, and defendant excepted. The cause was heard by the court, and the plaintiff had judgment for possession of the premises and for the sum of $105, the amount of the rent, then accrued and unpaid, and was allowed an appeal to this court.
There was a written lease between the parties for the period of one year, and provision therein for the payment of rent monthly at $15 per month. The defendant offered to show that the deed under which plaintiff had claimed title to the leased land had been cancelled, and plaintiff’s title extinguished by a judgment of the Circuit Court of Greene County in March, 1923, and that plaintiff had filed no motion for a new trial to set aside said judgment and it became and *487was final against h-im, and' he was thereby divested of all right, title and interest in the real estate involved in this suit. Defendant also offered to show that he had paid to plaintiff rent to March 20, 1928, and that after the title of plaintiff to said premises had been extinguished, defendant offered and proposed to the plaintiff that defendant would pay the rent falling due after March 20, 1923, into court, or into the hands of someone to be held until it could be determined to whom the rent accruing after March 20, 1923, was justly due. The court refused these offers, and defendant excepted. The errors assigned are, the refusal of the courts to call a jury, and the rejection of the evidence offered by the defendant to show that plaintiff’s-title to the premises had been extinguished. It was admitted by defendant that he had remained continuously in possession of the premises after March 20, 1923, and was in possession at the time of the trial, and there was no claim that after said date he had paid any rent.
The ease is here upon appeal by reason of the constitutional question raised by the defendant, and his contention that the refusal of his demand for a jury violated Section 28 of Article II of the State Constitution, which provides: “The right of trial by jury, as’heretofore enjoyed, shall remain inviolate. ...”
The action provided by Sections 6901 to 6903 to be brought and determined before a justice of the peace, appears to be summary in character. Upon appeal to the circuit court, such action- is necessarily to be tried de novo. It is an action at law for -¿he recovery of money, and of possession of specific real property, and the ground of recovery of both is a breach by the defendant of an express contract to pay a stated rent.
In eases involving the question of the right of a party to demand a jury, this court, referring to the constitutional provision, has sometimes said the provision, whether in the present or in former constitutions, “merely guaranteed the continuance of the common-law'right of trial by jury.” [Bates v. Comstock Realty Co., 306 Mo. l. c. 328; Hickox v. McKinley, 311 Mo. 241; Eckrich v. St. Louis Transit Co., 176 Mo. 648.] In other cases, the ’expression used has been that-: “The status of what must be tried by a jury was fixed by conditions existing at the time of the adoption of the Constitution.” [Berry v. Railroad, 223 Mo. 366; Kansas City v. Smith, 238 Mo. 333.] It is not necessary here to attempt to distinguish the effect of these expressions or to discuss the respective natures of the actions in the cases mentioned. The statute, Section 1398, Revised Statutes 1919, governs the determination of the question here at issue. That section provides: “An issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived or a reference ordered as hereinafter *488provided.” This section antedates both the Constitution of 1875 and that of 1865. It appears in the form quoted in the Revised Statutes of 1855, page 1261. If, under the statutory provision defendant was entitled to demand a jury in the circuit court, there is little or no need at ¿11 of discussion of the constitutional provision, or of Avhat constituted the common-law right of trial by jury. The circuit court is a court of record and of general common-law jurisdiction. Section 1398 is embodied in the Code of Civil Procedure, which has been always understood to refer to and govern the practice and proceedings of courts of records possessing common-law jurisdiction. Section 1398 was evidently framed so as to draw the line between actions at law triable by a jury, and suits in equity to be heard by the court. The action triable bj' jury, an action for the recovery of money ‘ ‘ only, ’ ’ meant an action for the recovery of money and where the demand of the plaintiff could be wholly satisfied by the payment of money, and not one requiring relief equitable in character. Counsel for plaintiff in support of their contention that the rig’ht to demand a jury did not exist in the circuit court, cite State ex rel. v. Allen, 45 Mo. App. 551. In that ease the Kansas City Court of Appeals held that in an action of this character before a justice of the peace, not exercising jurisdiction according to the course of the common law, a jury was not authorized, because not required by legislative enactment, and issued its writ of prohibition against the justice to prevent him from calling a jury; but, that court after so holding-closed its opinion as follows: ‘‘ For notwithstanding the statute in question does not provide for a jury trial, yet it does provide, without unreasonable restriction, for an appeal to a court where a jury trial may be had. [Sec. 6400.] When such is the case, the Constitution is not only not violated, but the mode and manner of securing the constitutional right is pointed out. [City of Marshall v. Standard, 24 Mo. App. 193; 1 Bishop, Crim. Pro., sec. 893; 1 Dillon, Mun. Corp., sec. 439.] ”
The courts of appeals have several times had under consideration the sections embodying the provisions of Section 1389. In Hoyt v. Davis, 21 Mo. App. 235, the plaintiff, a widow, claimed one-half of the personal estate of her deceased husband under the statutes then in force. Upon appeal from the judgment of the probate court, the circuit court appears to have proceeded upon the theory that the case was one in which declarations of law need not be given. The ease was heard by the court, and the plaintiff’s declarations of law were refused. The court of appeals held that the action ivas triable by a jury in the circuit court, had a jury been demanded, 'and therefore it was a case where appropriate declarations of law might be required by either party.
*489In Bradley v. Woerner, 46 Mo. App. 371, the action was one by a widow for the widow’s allowance. The issue was whether the petitioner was the widow of the deceased. The petitioner demanded a jury to try that issue. The probate court denied the demand. The court of appeals refused the writ of mandamus to compel the probate court to summon a jury upon the ground that Section 2131, Revised Statutes 1889, now Section 1398, did not apply to the probate court, or other courts of record possessing no common-law jurisdiction. The case of Hoyt v. Davis, supra, urns referred to, and distinction drawn between the right to demand a jury in the probate court, and the right in the circuit court upon appeal from the judgment of the probate court.
This case in the circuit court was triable by a jury, and the court erred in refusing the defendant’s demand for a jury.
The defendant next complains of the rejection of the evidence offered by him. This was an offer to show that in a proceeding in the Circuit Court of Greene County against this plaintiff and a brother of plaintiff and others, brought by two sisters of this plaintiff, a final decree had been rendered cancelling the deed made to plaintiff by his late brother, Moses Renshaw, deceased, un(jer which the plaintiff claimed title to the leased land; that plaintiff’s only claim of title was under said deed; that this plaintiff had filed no motion for a new trial, and had taken no steps to review said decree; and, since the rendition of said decree, had not procured or received to himself any deed or conveyance of the land from the successful parties in that suit, and that the successful parties to that suit had made demand upon defendant for the rent of the leased premises. Counsel for defendant insist that the rule that a tenant is estopped to deny his landlord’s title so long as he holds the possession originally derived from the landlord, does not forbid the tenant from showing that the landlord’s title has expired, or been extinguished since the creation of the tenancy; and cites as authority for that contention a number of cases: Pentz v. Kuester, 41 Mo. 447; Barclay v. Pickles, 38 Mo. 143; Dale v. Parker, 143 Mo. App. 492; Robinson v. Troup Mining Co., 55 Mo. App. 662; Chaffin v. Brockmeyer, 33 Mo. App. 92; Meier v. Thieman, 15 Mo. App. 307. Reference is also made to 35 Corpus Juris, pages 1240, 1243.
As we understand the rule as gathered from the foregoing authorities and others, the tenant may show that the title of the landlord has expired since the making of the lease, or since the time when the relation of landlord and tenant arose. That is, the tenant is not precluded from showing the expiration or extinguishment of the title of the landlord, the same title which the landlord had at the time of the creation of the relation. The tenant does not deny the title of *490his landlord by showing that the title which the landlord did have had expired by lapse of time, or by operation of law. The distinction is indicated in what was said in Meier v. Thieman, 15 Mo. App. l. c. 310: “A lessee may plead that though the lessor had an interest in the premises at the time of making his lease, his interest terminated before the alleged cause of action rose. [Palmer v. Bowker, 106 Mass. 317.] He may show, for instance, that the lessor was only seized in right of his wife, for her life, and that she died -before the covenant was broken; or, that the lessor being executor durante minori aetwte, the infant has since become of age. [Lamson v. Clarkson, 113 Mass. 348; Andrews v. Pearce, 4 B. & P. 158.] ”
See also 16 Ruling Case Law, page 665: ‘ ‘ The estoppel of the tenant extends only to a denial of the title which the landlord had at the time of the lease, and ordinarily a tenant is not estopped to deny that the landlord had any greater estate than is necessary to support the tenant’s lease. The estoppel is not applied except when the .tenant undertakes to set up a title inconsistent with the idea that, :at. the time he took the possession, the landlord had the title which was recognized between them, and is subject to well-settled exceptions arising from matters happening subsequent to the creation of the tenancy. ’ ’
. The offer of the defendant in this case was not to show the expiration or mere extinguishment, since the creation of the relation of landlord and tenant, of title which the landlord had, at the time that relation was created. What defendant proposed by his offer was to show a superior or paramount title in other persons as against the landlord. Defendant did not offer to show that he had been evicted either actually or constructively under this paramount title. He did not claim that he had attorned or attempted to attorn to the holders of this paramount title, in consequence of the decree rendered in their favor and against the plaintiff in this suit. [Sec. 6882, R. S. 1919.] He remained in undisturbed possession under the relation, created by the lease and by his possession under it, and he did not see fit to break that relation. If he had surrendered the .premises with the consent of the plaintiff, or had been evicted by the persons establishing title paramount and adverse to the plaintiff, or, “pursuant to or in consequence” of the decree in question in good faith had attorned to the persons decreed to hold title paramount to that of the plaintiff, he would be in a situation vitally different. The offer of defendant did not include a statement, nor an offer to show, that the plaintiff had an undivided interest in the premises as an heir of the brother who had made the deed which was cancelled by the decree. The offer proceeds upon the theory that the deed was annulled, and plaintiff had no title. The following is pertinent, 36 Corpus Juris, pages 271, 272: “An eviction by title paramount *491arises where a third person establishes a title to the demised premises superior to that of the landlord, and by virtue of that title gains actual possession of the premises or constructive possession thereof through attonpnent of the tenant to him. The eviction may arise by ouster of the tenant by physical acts of the holder of the paramount title, or by virtue of the legal proceedings instituted by him, or by the tenant’s yielding possession to him, or by an attornment to him by the tenant while remaining in possession. An eviction by title paramount does not otherwise arise. The mere existence of an outstanding title paramount to that of the landlord does not constitute an eviction. Actual ouster of the tenant is not necessary. If the tenant, to prevent being actually expelled from the demised premises, yields possession thereof, and attorns in good faith to one who has a title paramount to that of the landlord and also the right to immediate possession, this is equivalent to an actual ouster.”
The decree against the plaintiff did not put the other parties in possession, nor evict the defendant. Under his lease he remained in a possession which was not disturbed; he remained the tenant of the plaintiff; and was estopped to deny his landlord’s title. [Higgins v. Turner, 61 Mo. 249; Grant v. White, 42 Mo. 285; Stewart v. Miles, 166 Mo. l. c. 181; Aguglia v. Cavicchia, 229 Mass. l. c. 266; Eddy v. Coffin, 149 Mass. 463.] He was under an express contract to pay rent. He did not surrender the premises, nor was he evicted actually or constructively and his obligation was not discharged. [Huling v. Roll, 43 Mo. App. l. c. 240; Churchill v. Lammers, 60 Mo. App. l. c. 249; Livestock Assn. v. L. & C. Co., 138 Mo. 394.]
We have held that defendant, as a matter of right, was entitled to a jury, but as a necessary result of our holding in the last preceding paragraph, it would be useless to send the ease back for a jury trial, since upon defendant’s own testimony his possession of the demised premises had not been disturbed, he not a^orne(j †0 successful parties to the decree, and had not paid the rent. According to his evidence that which was received, that only offered but rejected, a jury trial could avail him nothing. Under such circumstances, as was said in Ward v. Quinlivan, 65 Mo. 453, it would be going through a “barren formality” to send the cause back for a jury trial. [See also Rolla Produce Co. v. American Railway Express Co., 205 Mo. App. 646.] For that reason the judgment should be affirmed.
Seddon and Elkson, CC., concur.
The foregoing opinion by Lindsay, C., is adopted as the opinion of the court.
All of the judges concur, except Gantt, J., not sitting.