153 Iowa 241 | Iowa | 1911
The intervener, Seeburger, leased to the Independent Ice Company certain real property, and at the same time entered into a contract with the ice company, whereby the ice company was given an option to purchase said property for $4,000, payable in installments of $500 each. The lease was made on the 20th day of February, 1909, for a term of two years, and provided for the payment of rent on the 1st day of March following and monthly thereafter. It was also provided that if default should be made in any of its covenants by the tenant it should be lawful for the landlord “to reenter the said loremises or to distrain from said rent, or he may recover possession thereof by action of forcible entry and detainer, or he may use any or all of such remedies.” And, further, that the tenant “will'not sell, assign, underlet or relinquish the said premises without the written consent of the lessor under a penalty of a forfeiture of all its rights under this lease at the election of the party of the first part.” “Lessor has entered into option contract with lessee of this date on said premises to which reference is here made and which is a part hereof.” The contract, giving the option to buy the premises, contained the following provisions:
Second party (ice company) shall also annually pay all taxes and assessments that may accrue on said property as they become due, or before they become delinquent and including the last half of the taxes for the year 1908. •Whereas said first party (Seeburger) has this day leased
The ice company took possession under the lease and erected buildings on the property, but did not pay the rent due on the 1st of March until in June, and never, in fact, paid any rent thereafter. The company owed a large amount, and on the 13th day of July, 1909, this action was commenced for the foreclosure of a mortgage upon its property. A receiver for its entire property was appointed on the same day and took immediate possession thereof, and continued the ice business under the orders and direction of the court. The receiver paid the rent accruing after his appointment, and it was accepted without protest hy the intervener. After the receiver had taken possession of the property, and on the 13th day of September, 1909, Seeburger, the landlord, intervened in the action then pending, alleging that he was the owner of the property, and that rent was due him therefor for the months of April, May, June, July, August, and September, and he asked that his lien therefor be established as superior to the liens of the mortgages. In his petition of intervention, Seeburger alleged that he had made the lease and option contract, but he made no -claim therein that either had been for
December 4th the court heard the receiver’s report, and found and ordered as follows: “The court finds from such receiver’s report that there exists between defendant ice company and R. Seeburger a land contract or option for certain lots at Fifteenth and Walnut streets, in the city of Des Moines, Iowa, in which said ice company had an option or right to purchase said lots, and that A. IT. Blank has offered the sum of - $250 for said option, and that the same is the fair and sufficient value thereof. The court hereby expressly authorizes, empowers, and directs the receiver to make .conveyance or assignment to A. II. Blank of the option or land contract existing between R. Seeburger and the defendant ice company upon the payment to the receiver of the sum of $250, the receiver to pay said rent or other charge as may exist against such contract or option at this date.”
On the 6th day of December, 1909, the receiver assigned said option contract to A. H. Blank, and on the 8th and 14th of the month the receiver tendered to See-burger, in writing, the first installment due on the option contract and also the rent due, both of which were refused. On the 31st day of December, the court approved and confirmed the sale and assignment of the option contract to the plaintiff, Blank. Thereafter the receiver answered the
It is well settled that a man may not take contradictory positions, and where he has the choice of two modes of redress, and the two are so inconsistent that the assertion of the one involves the repudiation of the other, his deliberate choice of one, with knowledge of such facts as would entitle him to resort to either, will estop him from thereafter going back and' electing again. Seeley v. Seeley