163 Ind. 1 | Ind. | 1904
This action was tried and determined in the lower court adversely.to appellant on its complaint, consisting of three paragraphs, the first of which is the landlord’s statutory action for recovery of the possession of the premises in controversy. It is therein alleged that on the 1st day of May, 1899, and long prior thereto, the plaintiff, Cambridge Lodge, Ho. 9, Knights of Pythias, was, and now is, the owner in fee simple and in possession of the following described real estate, situated in Wayne county, Indiana, viz., lots numbered sixteen, seventeen, and eighteen in block three, west of the river and north of the Hational Road, in Cambridge City, and also the following parcel of ground adjoining said lots on the west: Commencing thirty-three feet Avest of the alley in said block number three-; running Avest along the Hational Road seventy feet; thence north 120 feet to the northwest line of said lot sixteen in block three. The lots above described formed the east boundary of said ground. On May 1, 1899, the plaintiff leased and rented to the defendant Charles W. Routh the right, privilege, and use of a certain driveAvay and passageway situate upon, through, and over a part of said real estate, about fourteen feet in Avidth and 120 feet in length, leading to and from a livery barn, then owned and occupied by the defendant, to Main street in said toAvn, and situated about tAvelve to fourteen feet Avest of what is knoAvn as the Pythian, Temple, in said toAvn.
To this complaint appellee filed an answer in seven paragraphs, the last of which was the general denial. By the first paragraph it is alleged that the right of way referred to and described in the complaint is now, and for more than forty years last past has been continuously, a public street and highway in the town of Cambridge City, of said county, laid out and opened, and in use by the public
Appellant demurred for insufficiency of facts, separately and severally, to the first, second, third, fourth, fifth, and sixth paragraphs of the answer. The demurrer was overruled, to which ruling it excepted. The reply was the general denial. Trial by the court. Special finding of facts, upon which the court stated conclusions of law adversely to appellant, and rendered judgment against it for costs.
Three alleged errors are relied upon by appellant for a reversal, the same being assigned as follows: “(1) The court erred in overruling the demurrer of appellant to the first, second, third, fourth, fifth, and sixth paragraphs of appellee’s answer. (2) The court erred in its conclusions of law upon the special finding of facts. (3) The court erred in overruling appellant’s motion for a new trial as of right.”
The first, second, third, fourth, and fifth paragraphs profess to answer the complaint as a whole, while the sixth paragraph, it will be observed, is addressed solely to the first paragraph of the complaint. It is contended by counsel for appellant that each of these six paragraphs is bad, so far as it relates to or seeks to interpose a defense to the first paragraph of the complaint, for the reason that each must be held to violate the rule which prevents a tenant, during the existence of the tenancy, from controverting his landlord’s title to the leased premises. The principle is universally recognized that a tenant during the existence of the tenancy is estopped from denying the title of his landlord, either by setting up title to the premises himself, or in a third person. It will be observed, however, that the first assignment of error, which assails the decision of the court on the demurrer to the answer, is joint 5 and
Appellee claims that the rule for Avhich appellant contends is not applicable to the sixth paragraph of the answer. This paragraph is intended solely as a defense to the first paragraph of the complaint. Therein® appellee expressly and specifically denies the existence of the tenancy alleged in the first paragraph of the complaint, and, in avoidance of appellant’s right to recover thereon, the user of the locus in quo by appellee, under a claim of right and without interruption for a period of over twenty years, is alleged and set up. If, as the-answer, in effect, avers, the relation of landlord and tenant did not exist between the parties, then, under the circumstances, appellee Avould not be bound by the rule Avhich forbids a tenant to deny his landlord’s title. The relation of landlord and tenant betAveen the parties was essential and indispensable, in order for appellant to maintain the action alleged in the first paragraph of the complaint. In the absence of such a relation, either express OV implied, a suit for use and occupation of real estate can not be maintained. Newby v. Vestal (1855), 6 Ind. 412; Nance v. Alexander (1875), 49 Ind. 516; Pittsburgh, etc., R. Co. v. Thornburgh (1884), 98 Ind. 201.
The sixth paragraph, under its express or specific denial, together with the other facts therein averred, constitutes a sufficient answer to the first paragraph of the complaint.
As all of the paragraphs are not shown to be bad, no available error, for the reasons heretofore stated, is pro
Appellant next contends that, under the facts as found by the court in its special finding, it was entitled to a judgment in its favor for possession of the real estate upon the first paragraph of the complaint, and hence it is asserted that the court erred in its conclusions of law. The finding of the court may be said, to an extent at least, to be open to the criticism of appellant that it is indefinite, and in part finds mere evidentiary items. It is, however, expressly found therein, among.other things, that appellant sometime between 1898 and January, 1900, through its trustees, entered into, “an agreement and contract'with the defendant that he should pay to said lodge the sum of $2 per month for the right and privilege of passing over said driveway from Main street to his livery barn; that this rent was payable by the month; that in the month of January, 1900, the defendant paid to the plaintiff on said contract and agreement the sum of $10,” which it applied as rent. It is further found “that at the time plaintiff and defendant entered into said agreement it was understood by and between them that it was a lease of said driveway for the aforesaid price;” that, after said contract “was entered into, the defendant, in pursuance thereto, used said driveway for the aforesaid purposes, and has continued to use it from said day until the present time; that, in connection with his said livery-stable and driveway, he has also at times used parts of the ground lying west of the driveway for the purpose of standing buggies thereon.” The court finds that on May 20, 1901, plaintiff gave the defendant a written notice to deliver up to it, at the expiration of ten days from the time of receiving said notice, the possession of the premises in question, unless the rent due thereon should be paid within that time. It is found that at the time plaintiff gave the defendant said notice it “claimed that there was due to it from the defendant, as rent on
The first paragraph of the complaint, as previously shown, was based on §7106 Burns 1901, which awards the landlord an action to remove a tenant from the possession of leased premises when he unlawfully holds over. Section 7092 Burns 1901 provides that “if a tenant refuse or neglect to pay rent when due, ten days’ notice to quit shall determine the lease, * * * unless such rent be paid at the expiration of said ten days.”
Before appellant was entitled to recover possession of the real estate in controversy upon the first paragraph of its complaint, the burden was upon it to establish, among others, two material facts: (1) That there was rent due from appellee to it at the time it gave him the notice to quit; (2) that he failed or refused to pay the rent due within ten days after receiving the notice. It was indispensable that appellant establish these facts in order to show that appellee was unlawfully holding the premises, and therefore, under the statute, it was entitled to have him removed therefrom'. The finding is entirely silent in respect to both of these facts.
It is well settled that the office of a special finding is to find facts, and no omission in this respect can be supplied by intendment. The failure to find a fact in favor of the party upon whom the burden of proving it rests is equivalent to an express finding against him as to that fact. It is manifest, therefore, that under the facts disclosed by the special finding, appellant was not entitled to recover upon the first paragraph of its complaint,
It was optional with appellant to have instituted an action to remove appellee, as a tenant unlawfully holding over, as alleged in the first paragraph of its complaint, either before a justice of the peace or in the circuit court, as the latter has concurrent jurisdiction with a justice of the peace in such proceedings. §7107 Burns 1901. But whether such action is commenced originally in the circuit court, or is brought to that court by an appeal from the judgment of the justice of the peace, in neither case can a new trial as of right be demanded. Over v. Moss (1872), 41 Ind. 463; Corbin v. Thompson (1894), 141 Ind. 312; Butler University v. Conard, supra; Thompson v. Kreisher (1897), 148 Ind. 573.
In view of the fact that the second and third paragraphs were joined in the same complaint with the first, upon which a new trial could not be granted as of right, it follows, under the circumstances, that the motion was properly denied.
Rinding no available error, the judgment is affirmed.