17 Neb. 228 | Neb. | 1885
This is an action in the nature of an action of ejectment, brought by the defendant in error against the plaintiff in error to recover a certain tract of land. The petition is in the usual form in such case. The plaintiff in error, as defendant, filed an-answer in the nature of a cross-bill, denying the title and right of possession of the plaintiff, and alleging that he, the said defendant, was in the possession of the said land by virtue of a certain written contract and lease of said land executed to him by one H. E. Wells,
Defendant further alleged that while he was occupying said farm, to-wit, on or about the 5th day of September, 1881, at the special instance and request of said Wells, he received upon said farm 240 head of sheep belonging to. said Wells, to feed and care for said sheep, the said Wells agreeing that for such care, feed, etc., said defendant should receive the full and fair value of said feed, expenses, and care, which defendant gave and bestowed until March 17, 1882, the items of which said feed, care, and expense which said Wells agreed to pay, and which defendant alleges are fair and reasonable as charged, are contained in Exhibit B, attached to and made a part of said answer. And defendant further alleged that for the purpose of properly housing the said sheep it became and was necessary to build a certain barn on said farm, which, accordingly, was erected, it being agreed and understood that upon final adjustment of all matters in difference between defendant and said Wells that said Wells be allowed and credited with
The said defendant therefore prayed that an accounting might be had of the balance due from him in the premises, and that upon the payment of three hundred dollars cash, and executing a mortgage for the remainder, that said plaintiff and said Wells be required to convey to defendant the said land, and the improvements thereon, which' said defendant prayed might be adjudged as held in trust for him, the said defendant, and for general relief.
The plaintiff filed a reply to the said answer and cross-bill of the defendant, in which he denied the several allegations therein, except as in the said reply are specifically admitted, and such as were substantially set out in the petition. He admitted that the said Wells leased said premises to the defendant for the term of years as set out in the defendant’s answer, but he denied that said Wells ever agreed to sell the same to defendant as set forth in his said answer, and denied that the said Wells ever agreed to pay defendant for taking care of said sheep, or furnishing food for the same, and denies that he is indebted to said defendant therefor, and plaintiff alleged the truth to be that some time in the month of September, 1881, the defendant and one Edwin .Brooks entered into a contract in substance that the defendant should take the sheep, named in defendant’s answer, and keep the same five years without any expense to said Brooks, and annually the said defendant should return to the said Brooks one-half of the wool and one-half of the increase, and the original number of sheep at the end of five years, and the said defendant was to have one-half of the wool and increase thereof in full for his pay for the care and feed of said sheep. That the said defendant so negligently and carelessly cared for said sheep that they nearly all died, and by reason thereof the said defendant and the said Brooks <; nefed said contract,
There was a trial to the court, and a finding for' the plaintiff. And a motion for a new trial having been overruled, and a judgment rendered for the plaintiff, the defendant brings the cause to this court on error.
The plaintiff in error presents the. following points in ' his- petition in error :
“I. For the reason that the finding of said court or verdict is not sustained by the evidence in the cause.
“ II. That the verdict is contrary to law.
“ III. Error of the court in refusing to submit the questions of fact in said cause to a jury as requested by the defendant on the trial of said cause.
“ IV. Error of the court in the admission of evidence introduced by the plaintiff over the objection of the defendant at the time, and excepted to by the defendant.
u V. Error of the court in dismissing defendant’s
“VI. Error of law by the court during the progress of the trial of said cause in the admission of evidence objected to by the defendent and excepted to at the time.”
The first, second and fifth errors assigned will be considered together.
It appears from the evidence as preserved in the bill of ■exceptions that shortly before the 8th day of January, 1881, the defendant had, upon the invitation of A. E. Wells, met him at Tekama, and driven to the farm in question, then lately purchased by Wells, and examined it with a view of leasing it' for a term of years, and ultimately purchasing it from Wells. The contract then entered into between them for that purpose is evidenced by a letter written by Wells to defendant on the 8th day of January, 1881, and sent by mail to defendant, of which the following is a copy:
“ Oakland, Neb.,
“J. L. Enyeart: “ JaD‘ 8’ 1880
“Dear Sir—I have agreed to rent you my farm near Herman, in Washington county, Neb., being the south half of the N. E. J and the south half of the N. W. \ of sec. No. 26, in township No. 21 north, range 10 east, for the term of five years, from and after the Jan. 1, 1881, at an annual cash rent of one hundred dollars ($100), payable at the end of each year. You to pay taxes during said term, commencing with the taxes of 1881 and including the taxes of 1885. You to keep up and maintain all improvements and repairs. 1 also agree to sell said farm to you at any time during said term for the sum of twelve hundred dollars ($1,200), and upon payment of three hundred dollars in cash will give you a deed and take a mortgage for the balance, with the rate of interest then obtianed by me on other mortgage loans.
“A. E. Wells.
“Witness:”
There was a vast amount of conflicting testimony in regard to a band of sheep which were kept on the said farm by the defendant, which, according to testimony, belonged to the said Wells, and that defendant kept them for hire, but as I do not see that the same could properly enter into the consideration of the issue between the parties, and in view of the conflicting testimony it must be presumed that the trial court found against the defendant in that behalf —which it was amply warranted in doing, no further reference will be made to that matter.
It appears from the evidence that while the defendant was in the possession of the farm under the said contract the said A. E. Wells built a barn thereon, to which building the said defendant contributed a considerable amount in material furnished, -money paid workmen, work, hauling material, and boarding the workmen engaged in its erection.
The defendant and Wells met at the house of the former on the farm in question on the 25th day of March, 1882, and,after remaining part of the day there and looking over papers and accounts, and discussing business matters, they, together with a Mr. Cull, who was a witness at the trial, went to the office of Mr. Darrell, in the village of Herman,
But however this may be, the fact is undisputed that upon the conclusion of this settlement the defendant, signed, delivered, and received, to and from said Wells, a lease inter parties, whereby his tenancy was restricted to two years, and wherein he agreed to deliver up the possession of said farm to the said Wells, or his assigns, at the end of such term.
The defendant in his testimony says that he did not know at the time he received and accepted the said last mentioned lease that it contained, the clause for the redelivery of the possession of the premises at the termination
The law is thus laid down by a standard authority: “Where a lessee for years accepts a new lease from the reversioner, he is estopped from saying that his lessor had no power to make such a lease; and as the lessor cannot grant a new lease until the prior one has been surrendered, the acceptance of the new lease necessarily implies a surrender of the former one. Such surrender is an act of law and takes place independently of the intention of the parties.” Taylor’s Landlord and Tenant, § 507, citing Challoner v. Davies, 1 Ld. Ray, 402. Livingston v. Potts, 16 Johns., 28. Bailey v. Delaplaine, 1 Sanf., 5. Jungerman v. Bovee, 19 Cal., 354. See also Van Rensselaer’s Heirs v. Penniman, 6 Wend., 569. Springstein v. Schermerhorn, 12 Johns. R., 357, and Roberts" on the Statutes of Lands, 254 et, seq.
So, although it were proved or admitted that the clause in the new lease providing for the redelivery of the premises to the lessor at the end of the term was fraudulently inserted, I do not see that it would benefit the defendant, for, as we have seen, the same consequence would flow from the acceptance of the new lease whether it contained that clause or not.
The claim of the defendant to a specific performance is based solely upon the terms of the first or original lease. This, we have seen, was surrendered by operation of law, therefore no right depending upon it is capable of enforcement.
The second error assigned cannot avail the plaintiff in error, because it is stated, both in the record proper and in the bill of exceptions, that the cause was tried to’the court without the intervention of a jury by stipulation of parties.
The fourth and sixth errors assigned are identical. “ Error of the court in the admission of evidence intro
Greenleaf states the law that “ In trials of fact without the aid of a-jury the question of the admissibility of evidence, strictly speaking, can seldom be raised; since whatever be the ground of objection the evidence objected to must, of necessity, be read or heard by the judge in order to determine its character and value.” 1 Greenleaf on Ev., § 49.' There can be no doubt of the correctness of this rule when confined to questions of relevancy, and as my attention has been called only to this class of objections in the record it is not deemed necessary to examine the question further.
The judgment of the district court is therefore affirmed.
Judgment aeeirmed.