30 Neb. 783 | Neb. | 1890
On July 8, 1885, one Malina Sanchezcrey entered into an article of agreement for the purchase from the South Omaha Land Company of lot 4, in block 81, South Omaha. Subsequently she erected on the north half of the lot a two-story frame building, and on the 1st day of October, 1886, she leased the said north half to one George Boyle for the term of one year with the privilege of three years more, at his option, the stipulated rent being $50 per month. Boyle went into possession under the lease, and while in
It also appears that some time in April, 1888, and after 50
A trial was had to the court, with findings and judgment for the plaintiff. The defendants appeal.
It is claimed by the appellants that the lease from Mrs. Sanchezerey to Boyle contained a stipulation that the tenant could remove all buildings he should erect thereon during the continuation of the lease. The original lease was not produced on the trial, and without showing that ■it was not in existence, the defendants introduced a purported copy thereof, which contained such a clause. Whether such a provision was in the original lease when executed is not so clear. The lease, soon after its execution, was recorded in the county clerk’s office of Douglas county. The record thereof was produced at the trial, and it contained no stipulation authorizing the tenant to erect and remove buildings, nor did it prohibit the erection and removal of improvements. The parties to the lease were not called to prove its terms. Theodore Elliott and M. H. Ish, being called as witnesses by the defendants, testified to having made the copy of the original lease introduced in evidence, after it had been assigned to Mrs. Hewitt. While it may be true that they made a correct copy of the paper then before them, they could not know that it contained the disputed clause at the time of its execution, as they never saw the instrument until many months after it was made. This testimony was not sufficient to overcome, the record of the original made by the
Under the lease, as established by the evidence, the tenant had a right, before the surrender of possession, to remove any improvements owned by him which are embraced under the head of tenant’s fixtures, but the tenant had no authority to remove such improvements after the termination of the tenancy; in other words, the tenant could not re-eirter to remove his fixtures after the surrender of possession to the landlord. In the case at bar the addition constructed by the tenant was not removed before the tenant was ousted under the writ of restitution. It is true, before the writ of restitution was served, the execution in favor of Ryder & Glick was levied upon the addition. But we fail to see how that could affect the rights of the plaintiff. These creditors, by the levy of their execution, obtained no greater rights in the premises than had their debtors, the Hewitts. If the Hewitts had no right to re-enter and remove the property after they had been dispossessed under the writ of restitution, then it would seem clear that their creditors had no such right.
It is claimed that the lease was transferred to Mrs. Hewitt and not to her husband, and as she was not a party to the forcible detainer suit, she is not bound by the proceedings therein. It does • appear from the copy of the lease introduced in evidence by the appellants that it was assigned to her; yet it is equally certain that Friedlander, the plaintiff, was not aware that Mrs. Hewitt claimed any interest in the premises until long after this suit was instituted. The testimony shows that her husband stated to the plaintiff’s agent, Andrew Rosewater, just after the Hewitts took possession, that the lease had been transferred to Mr. Hewitt. It was he who paid the rent. The transcript of the detainer suit shows that Mrs. Hewitt was a witness for her husband on the trial of that case. There
The plaintiff contends that he is an innocent purchaser and had no notice when he purchased from Horrowich that the tenant in possession claimed to own the addition in question. The testimony shows that one Hammond represented the plaintiff in making the purchase. The testimony introduced for the purpose of showing that Hammond had actual notice that the addition belonged to the tenant, is conflicting and unsatisfactory. Horrowich, and his wife each testified at the trial that they informed Hammond at the time the deed was executed that the addition did not belong to them but was the property of the tenant. This is contradicted by the testimony of Hammond. As a reviewing court, we only examine the evidence to see whether it sustains the finding of the trial court. The testimony of Hammond, if true, was sufficient to base a finding that the plaintiff was not chargeable with actual notice of the rights, of the tenant. In our view, it is quite immaterial whether Friedlander had actual notice of the claims of the tenant or not. The latter was in the open, notorious possession at the time the plaintiff became the owner of the lot. This was sufficient notice of the rights of the tenant. ( Wing v. Gray, 36 Vt., 261; Dubois v. Kelly, 10 Barb., 508; Devlin on Deeds, sec. 770.)
This brings us to the consideration of the question, Was the addition erected by the- tenant of such a character that the law would permit him to remove it? The evidence shows that at the time the.premises were leased by Boyle,
We are convinced, from a careful reading of the testimony, that the improvement placed upon the leased premises was practically an enlargement of the old building, and that it cannot be removed without considerable injury to the premises. The judgment of the district court is
Affirmed.