77 Iowa 71 | Iowa | 1889
The testimony in the case, other than some documentary proofs as to the partition suit, and some oral testimony as to the rental value of the premises, isas follows: “Ñ. Q. Belknap. I am plaintiff. Six-fortieths of the land in controversy was decreed to me, and I purchased three-fortieths after decree. I brought suit in 1880 (2,774) and tried to get my share of that real estate. Brought second suit (3,466) in 1884. The rental value of land from 1880 to 1887, inclusive, per year, is three ($3) dollars per acre for cultivated land, and one ($1.50) dollar and ñfty cents for wood and pasture land.” “id G. Belknap, recalled. For six years prior to September 1, 1887, I did not occupy this land, nor did any person for me. Defendant occupied it. I never got any rent whatever.” Defendants’ motion asked the court to direct a verdict for them “on the recorded testimony introduced,” and the record does not disclose the particular reason or view of the court in so doing. The facts are undisputed, so far as the plaintiff’s right to recover is concerned, and to that extent the case only involves a question or questions of law. If the plaintiff may recover, a jury should assess the damage ; for the testimony is not entirely harmonious on that question. Several errors are assigned, but they are all embraced in the one “ that the court erred in its instruction for the jury to return a verdict for defendants.”
Prior to the partition the plaintiff and defendants in this suit were tenants in common of the premises partitioned, and it is urged by appellees that under the facts of this case the appellant cannot recover for rents during such tenancy. There is no pretense in this case of any agreement to pay rent; that a demand for possession was made and refused ; or of defendants having
Affirmed.