45 Ind. App. 188 | Ind. Ct. App. | 1910
Appellee commenced this action against ap-„ pellant before a justice of thé peace, to recover possession of a certain room of a certain building, and for damages. From
Error is assigned on the action of the circuit court in overruling appellant’s demurrer for want of facts to the complaint, and that the court erred in its conclusions of law.
It appears from the complaint that on May 19, 1906, Margaret Smith was the owner of certain real estate in the city of Attica, on which was located a hotel known as the “Revere House;” that she rented the south corner room of said hotel building to the defendant for a period of two years, beginning July 1, 1906, and ending on July 1, 1908, for an agreed rental of $30 per month, payable monthly in advance; that the defendant took possession of said room on July 1, 1906, “and has held possession of same ever since that date, and now is in possession thereof under said lease; ’ ’ that defendant failed and neglected to pay the rent due for the months of March and April, 1907; ‘ that the defendant unlawfully holds possession of said premises and retains the same from the plaintiff;” “that on February 9, 1907, said Smith leased to plaintiff [appellee] said ‘Revere House,’ which is a hotel building, including said south corner room leased to defendant by her, by a written lease; that under said lease the plaintiff took possession of said building, including the premises occupied by defendant, which defendant knew prior to March 1, 1907;” “that by defendant’s unlawful detention plaintiff is damaged in the sum of $50. Wherefore plaintiff demands judgment,” etc.
In substance, the special findings show that in the year 1906 the owner of a certain building known as the “Revere House,” in Attica, Indiana, of which building the room in question was a part, in writing leased said room to the appellant from July 1, 1906, to July 1, 1908, at a monthly rental of $30, payable in advance on the first day of each month. On July 1,1906, appellant took possession of the room under said lease, and continuously thereafter- and at the time of the trial was in possession thereof. On February 9, 1907, said owner of said building, in writing, leased to appellee the entire building, including the room leased to appellant, and on February 11, 1907, appellee took possession of said building, by virtue of the lease to him, subject to the rights oO appellant, and ever since that time has been, and at the time; of the trial was in possession thereof; that prior to March 1, 1907, appellant knew of the lease to appellee and acquiesced therein, and on February 26, 1907, he paid to appellee $20, the proportionate share of the rent for said room for the month of February, 1907. On March 1, 1907, appellant tendered to appellee the rent for said room due on that day. On April 1, 1907, appellant neither tendered nor paid lo appellee the rent then due, but did on April 6 tender to
This appeal was taken from a judgment rendered June 1, 1907.
3. 4. From the special findings it will be seen that this proceeding was possessory in its nature, and the wrongful possession of the premises in question was the gist of the action. The appellant took possession of the room under an express contract with the owner, whereby he agreed to pay a monthly rental of $30, payable on the first day of the month, in advance. Thereafter said owner, in writing, demised the entire premises, including the part occupied by appellant, to the appellee. It also appears that appellant knew of the lease to appellee, acquiesced therein, and paid to him a pro rata share of the rent for the month of February, and on March 1 tendered to him the rent due for that month. These facts bring the ease within the doctrine announced in the case of Cressler v. Williams (1881), 80 Ind. 366: “Where one claims to be the lessor, and the tenant in possession acquiesces in the claim, and pays the rent, the presumption is that the relation of landlord and tenant exists, and this presumption will prevail, unless overcome by countervailing evidence. Taylor, Landlord and Tenant, .§22, n.” See, also, Dunshee v. Grundy (1860) 15 Gray 314; Lindley v. Dakin (1859), 13 Ind. 388.
On April 1 appellant failed to pay or tender to appellee
Judgment affirmed.