Farley v. McKeegan, 48 Neb. 237

Farley v. McKeegan

48 Neb. 237 | Neb. | 1896

Post, C: J.

This was an action by tbe plaintiff in error in tbe district court for Cuming county, wbo sued to recover f675, tbe value of 270 tons of bay, wbicb, as therein alleged,, was unlawfully converted by tbe defendants in tbe summer of 1891. Accompanying tbe answer, wbicb is in effect a general denial, is a counter-claim for flOO on account of trespass by tbe plaintiff upon tbe premises described in tbe petition. On tbe trial of tbe issues thus joined there was a verdict and judgment against tbe plaintiff below as to her cause of action, and in favor of tbe defendants on their counter-claim in tbe sum of five cents, to reverse wbicb this proceeding is prosecuted by tbe former.

Tbe substantial controversy is tbe right of possession of the locus in quo, to-wit, tbe northeast quarter of section 26, township 24, range 7 east, in Cuming county. Both parties claimed through Richard Rush, an Omaha Indian, to whom said land was allotted under tbe provisions of tbe act of congress approved August 7,1882. Tbe basis of tbe plaintiff’s claim is a lease under date of July 1, 1891, from Noah La Flescbe, wbo claimed to bold by virtue of a lease executed by said Rush February 16, 1891, and acknowledged August 17 following. On tbe other band, it was shown that' Richard Rush bad left the Omaha reservation some time previous to tbe allotment of tbe lands thereof, and that selection was made in bis behalf by bis brother, Joel Rush. On tbe third day of May, 1887, Mary Rush and John Webster, guardians of tbe minor children of tbe said Joel Rush, then deceased, *239executed a lease of the land in dispute to John McKeegan and John Blenkiron for the period of five years. Richard Rush, it should be observed, was, at the date last named, supposed to be dead, and said lease was executed by the guardians named in good faith, believing that the title to the property therein described was in the children of his deceased brother. In the year 1889 or 1890 tlm said Richard returned to the reservation, and thereafter collected from the defendants McKeegan and McManus, who had succeeded to the rights of McKeegan and Blenk-iron, the annual rental for the premises at the stipulated rate of f 100 per annum, payable May 1 of each year. The lessees last named took possession upon the execution of the lease to them in 1887, which possession in them and their successors in interest, McKeegan and McManus, continued up to and subsequent to the date of the lease from La Flesche to the plaintiff. The argument of the plaintiff is directed mainly to the proposition that there was no competent proof of a ratification on the part of Richard Rush of the unauthorized lease executed in behalf of the children of his deceased brother. That proposition may be conceded without an examination of the evidence, although it does not necessarily follow therefrom that the judgment complained of is wrong. On the contrary, it is reasonably certain that the relation of the defendants toward Rush, the owner of the premises, resulting from the act of the latter in accepting the annual rental, as above stated, was that of tenants from year to year, which could be terminated only in the manner prescribed by law, and is a sufficient protection to them in this action. The relation of landlord and tenant does not necessarily depend upon an express agreement, but, like all other contract relations, may be implied from the conduct of the parties; and it may be asserted as a rule of universal application that a general occupancy of land will be treated as a tenancy from year to year, whenever the reservation of rent or other circumstances plainly indicate an agreement for an annual holding. (Wood, *240Landlord & Tenant, p. 5, and cases cited; 4 Kent’s Commentaries, 114; Jackson v. Wilsey, 9 Johns. [N. Y.], 267; Critchfield v. Remaley, 21 Neb., 178.) As a matter of conrse, the occupancy of the defendants might, upon the giving of proper notice, have been terminated on the 30th day of April, 1891. But instead of any steps being taken by Rush or others claiming under him toward a termination of the lease, the defendants were permitted to hold over without objections, so far as appears from this record, until the hay in controversy was ready for harvest. The law, from the facts stated, and as to which there is no dispute, implies an agreement for the continuance of the lease for the year ending April 30, 1892. The judgment is therefore

Affirmed.