19 Kan. 550 | Kan. | 1878
The opinion of the court was delivered by
“This article of agreement, made this 14th of June 1870, by and between Paul Beck, of the first part, and Marshall Birdsall and J. W. Frantz, of the second part, witnesseth: That said parties of the second part, for and in consideration of the matters and things hereinafter mentioned, agree to erect on lots Nos. 73 and 75 on Mechanics street, in the late town, now city of Emporia, Lyon county, Kansas, a wooden building, 40 feet long north-and-south, by 20 feet wide east-and-west, fronting on Fifth avenue; said building to immediately join the Buckeye House on the east, to be two stories high, each story to be of the same height as the corresponding ones .of the Buckeye House, said building to be placed on a good stone foundation; the studding are to be sixteen inches apart, the weather boarding to be one foot wide and one inch thick, and to be joined by an inch groove; to be plastered or ceiled on the inside, at the option of the parties of the second part; the flue of said building to be made of brick, and to commence at least 12 inches below the second floor. And the said party of the first part, in consideration of the faithful performance of the stipulations hereinbefore mentioned, agrees that the said parties of the second part shall have the use of the said building and the Buckeye House from the time the materials for said building are on said premises until the first day of October 1871, at the annual rent of six hundred dollars, and from the first day of October 1871, thereafter, at a rent to be agreed upon between*552 the parties, until said rent shall amount to the costs of the building. If the rent, after the first day of October 1871, cannot be agreed upon between the parties, it shall be left to three disinterested business men of Emporia, and whatever rent they or any two of them shall agree upon, that rent shall be paid; and in the event it is left to third parties, they are to fix the rent for the old building (Buckeye House) only, it being a part of this agreement that no rent shall be paid upon the new building until the rent of the old' building amounts to the cost of the new, after which it is to be considered as belonging to the party of the first part, and the parties of the second part are thereafter to have the use of said two buildings so long as they may desire to use them for a hotel, the rent to be determined in the same manner for the two buildings as above stipulated for the one after the first day of October 1871.
“In order that there may be no misunderstanding concerning the cost of said building, the parties of the second part agree to furnish to the said party of the first part all the bills of the carpenters, lumber-dealers, masons, painters, and all others who may furnish material for said building or aid in the construction of the same.
“It is further agreed that if the said party of the second part cut any doors or windows in the walls of the Buckeye House, they will fill them up with same material that came therefrom, and leave it in all respects as they found it, provided the said party of the first part so desires; and in no case shall there be more than two doors cut through said walls. And it is further agreed that while said parties occupy said premises there shall not be more than one stove used in the building hereby agreed to be built; and in all respects are to use said premises in a careful and husband-like manner, and shall be responsible for all waste, natural wear and tear, damages by fire, and inevitable accidents excepted.
“ Witness our hands at Emporia, the day and year first above written.”
Under the lease, Birdsall and Frantz went into possession, and fully completed the new building according to the terms of the contract. Paul Beck had suffered the premises to be sold for taxes prior to the date of this contract, to-wit, at the May sale of taxes of 1867, and P. B. Plumb had bid off the property described in the lease, and
Upon consideration of the arguments pro and con, and construing the written agreement, we can only interpret it as a lease, requiring and providing that the rent is to be paid in improvements on the premises. No other relation is created by the written instrument between the parties thereto than landlord and tenants. That the rent is to be paid in work, labor, and materials, in the construction of a wooden building on the lots, instead of money, does not change the character of the lease, excepting as between the parties. Such tenants were entitled to the actual possession of the real estate until the rents equaled the costs of the improvements. With this view, the only question that is necessary for us to consider is, whether Birdsall and Frantz, having taken possession of the premises under the lease, and while thus occupying the same, having made improvements thereon to be paid for in the rents of the premises, were entitled to a lien on the real estate for the cost of the improvements, after having been wrongfully evicted by their landlord before the rents amounted to the cost of the improvements. No lien is created by express terms in the lease; no attempt is made to support a lien upon the statutory enactment relating to mechanics and materialmen, or upon the provisions of the law favoring occupying claimants. But it is urged that, as the defendants in error acted bona fide, and under a written contract, and there has been a substantial benefit conferred on the owner of the premises, ex aequo et bono, he
But the defendants in error are not remediless. Paul Beck
The conclusion of law of the court below was erroneous, and the judgment must be reversed, as the defendants in error had neither any statutory nor equitable lien capable of being enforced by an action. Upon the conclusions of fact found by the district court, the judgment below will be reversed, and the case remanded with . instructions to enter judgment for costs in favor of Elizabeth Beck, the plaintiff in error.