151 Ind. 507 | Ind. | 1898
This was an action for the possession of real estate alleged to be held over from the appellant as landlord by the appellee as tenant in breach of two certain leases. In the lower court there was a trial, and, upon issues formed, and a special verdict in the form of interrogatories and answers a judgment was rendered for the appellee. One assignment of error urged is upon rulings as to pleadings. The question so urged, arising upon the special verdict, need not be considered upon the pleadings. Smith, Tr., v. Wells Mfg. Co., 148 Ind. 333; Woodward v. Mitchell, 140 Ind. 406; Wilmore v. Stetler, 137 Ind. 127. Pacts found were to the effect that Harvey owned a tract of land in Cass county, subject to a mortgage for $6,000; that he borrowed an additional sum, which he secured by a second mortgage; that the latter mortgage was foreclosed, the property was sold, a certificate was issued and assigned to a Mrs. Crowell. A deed was executed upon said certificate to Mrs. Crowell, who, through the appellant as her agent, leased said lands to the appellee, who joined therein on the 14th day of January, 1895. Later she executed to the appellant a deed of conveyance for said lands. Still later the appellant became the owner and assignee of said $6,000 mortgage. On July 29, 1895, the appellant and the appellee joined in a lease of said lands to the latter.
Passing the question, somewhat doubtful, as to whether the above stipulation, if inserted in the lease, would give the right of redemption or would amount to more than a contract for the purchase of the land, we feel quite certain that the instrument would still create the relation of landlord and tenant. The belief
The appellee’s learned counsel concede the rule, but insist “that, if one in possession of land under a claim of title is induced to accept a lease through mistake, fraud, or trick of the lessor, the lessee is not estopped from setting up a title superior to that of his lessor.” This is probably an exception. 12 Am. & Eng. Ency. of Law, p. 705; but, in our opinion, it has no application here, since the fraud, if any, in this case, did not affect the character of the instrument as a lease and in recognition of the lessor as the landlord. The omitted provision related to redemption or to purchase, and, when considered as a part of the instrument, does not change the relationship of landlord and tenant. There is no finding or inference that the appellee was overreached when, by the other provisions of the instrument, he assumed the relation of tenant, and acknowledged the appellant’s relation of landlord. If the appellee is entitled to redeem under the contract when reformed, or if he may purchase, this is no excuse for denying the possession to which the appellant is entitled under the agreement. Nor do we understand appellee’s learned counsel to insist that, under the issues, the instrument was wholly void by reason of the appellant’s fraud, or that by reason of the fraud the agreement, including the omitted stipulation, should not prevail.