32 Kan. 499 | Kan. | 1884
The opinion of the court was delivered by
The plaintiff in error commenced this suit in a justice's court to recover $30, for rent of a lot from March 8, 1878, to March 8,1881. The defendant answered as provided by § 7 of ch. 81, Comp. Laws, claiming title to the lot. The justice certified the action to the district court for trial. In the district court the plaintiff filed an amended petition or bill of items, first, claiming $40, for the rent of the lot from March 8, 1878, to March 8, 1882, “as per a lease in writing under which the defendant had held over from year to year;'' and
The answers to the questions submitted by the respective parties, returned by the jury, fully sustain the general verdict. The plaintiff now claims that the instructions given to the jury were erroneous, and that the court should have given other instructions, which ought to have been given under the pleadings and evidence.
It is the duty of the court to instruct the jury on the law governing the case as he may think is shown by the pleadings and evidence; and if a party to the suit desires other or different instructions, he must, make his request for them in writing under §275 of the code; and if he fail to do so, then the instructions given stand as the law governing that case for that trial, and his only remedy is to except to the instructions given, move for a new trial on such exceptions, and if the motion is overruled, bring proceedings in error in this court. The plaintiff did iiot request the court to give any further or other instructions than those given by the court on its own motion, and cannot now be heard to complain that other instructions were not given. His failing to request other findings at the trial bars him from raising the question in this court.
On the trial, the plaintiff and defendant both testified that sometime prior to the 8th day of March, 1878, they mutually agreed that the lease for the lot under which the defend
We think when a material fact is testified to by both parties on the trial, the court may properly, in instructing the jury, assume that such fact is established, the same as if admitted by the pleadings, or by a direct admission of the parties in court on the trial, and that the court below did not err in this instruction to the jury in assuming that the agreement was, that the lease was to end on the 8th day of March, 1878. The plaintiff produced no evidence of his title to the lot, and the only testimony given in relation to title was that of Over-ton, a witness for defendant, who testified that on the morning of March 8, 1878, the defendant removed his fences from the lot; that while he was removing the fences, he (Overton) asked him what he was doing that for; he said it was Mr. Douglass’s lot; that he had leased it, but did not want the lot any longer.
Upon the question of a recovery for use and occupation
“To enable the plaintiff to recover irrespective of the lease, it was necessary to be shown that he had a title of some kind to the premises. This he claims to have done by the testimony of the witness Overton, who sáid that the defendant said to him on March 8, 1878, that it was Douglass’s lot; but I instruct you that title to real estate cannot be proved in that way, and as there was no other evidence of title produced, the plaintiff must recover, if at all, against the defendant holding over his term.”
We think this instruction was not erroneous. If the defendant in good faith abandoned the lot, then his possession and right of possession under the lease were at an end, and the fact that he afterward took possession did not revive the lease nor extend his term.
By the second cause of action the plaintiff claims to be the owner in fee of the lot, and because-of such ownership claims to recover for its use and occupation. The answer denies the plaintiff’s title. Before the plaintiff can recover for use and occupation under these pleadings he must prove his title, and the title cannot be proved by oral evidence. The admission of the defendant to witness Overton, after the lease was terminated, does not prove the title in the plaintiff or prevent the defendant from claiming the lot by an after-acquired title, nor make him liable to the plaintiff for the use and occupation of the lot. There was no evidence given sustaining or tending to sustain plaintiff’s second cause of action. We think the court properly instructed the jury, and that the verdict rendered is supported by the evidence. Judgment affirmed.