*1 attorney, County, prosecute expense at the of Lake appeal. by-the It is settled decisions of this well prosecuting proceedings court that one for a writ of error coram counsel or a nobis is not entitled to have exceptions containing the evidence bill furnished person, purpose prosecuting poor him as a for the appeal judgment sought. denying an from a the relief provided public represent The state has defender to persons funds, those who are without with full author ity necessary transcripts expense. to obtain at state 38; 1945, Replacement (1951 Acts ch. Burns’ 1942 seq.; Cutsinger Supp.), et ex rel. v. §§13-1401, State 148, Spencer, Judge (1941), 601; 219 Ind. 41 N. E. 2d Wiles, Judge (1946), 224 State rel. Ind. ex Wheelock v. 432; Bain, Judge Delong E. 2d ex rel. N. State v. , (1946) 224 Ind. 78 N. E. 2d Harris State , (1947) Ind. N. E. 2d 51.
Judgment affirmed.
Note.—Reported in 2d 103 N. E. 429.
Geyer v. Lietzan et al. January 28,856. Rehearing Filed 1952. [No. March denied 1952.] *3 Ralph Thorsen, S. George James J. Clark and P. Burgess, Hammond, appellant.. all of for
Byron E. Bamber Straley Thorpe,-both and of Ham- mond, appellees. for On April20, J. 1945 Herman
Draper, Holtz J. and owned, his wife by entirety, as tenants certain im Hammond., proved city real estate in the On said they date property leased this appellant for period years beginning May 1, of two ending April 1945 and 30, 1947.
407 appellant Pursuant to said lease posses- entered into property May 1, sion said July 10, 1945. On 1946 Lily 27, Holtz On appellant died. March 1947 served upon Herman notice Holtz of J. his intention to exer- option period cise his to renew said lease for two years. January died, leaving On 1948 Herman Holtz as his sole at son heirs law his Howard J. Holtz and his Margaret daughter, E. Lietzan. March On conveyed said Howard J. Holtz his said interest real estate to his said sister. On December Margaret E. Lietzan her and husband Ernest W. conveyed property Byron Lietzan E. Bamber as trustee, day reconveyed prop- on the same he erty entirety. by appellees as tenants At all they property. times since have been the of this owners appel- On notice on March served lees his intention to exercise to renew the his year period May 1, two from lease for another April 30, 1951. appellees May On commenced this action in Superior County, Court of Lake Room 5. Their alleged complaint ownership their imme- possession property, diate the unlawful detention damage by appellees’ appellant to $1,000. in the sum of complaint accompanied by was The affidavit for imme- possession possession. A writ of Ap- diate issued. posted posses- bond has ever pellant since retained sion. answer,
Appellant, up his amended set mat- regarding referred to hereinbefore the execution ters *4 part which was made a of said lease answer. alleged It further he exercised his in and 1947 service of notice of his intention to his exercise option on March 1949. It averred he further had obligations paid due and fulfilled all his all rents 408 that appellees
under the lease and were bound and have terms ratified the of the lease.
Appellees, reply, by their all admitted alle- gations except they they of the answer denied had adopted They they and ratified the lease. admitted re- May 1, 1949; rent under fused the due said lease on and that rent due on and since said date had been tendered and refused. trial,
At out, in addition to facts herein set there property. evidence as to rental value of finding Trial to the judgment court resulted in and appellees possession were entitled to immediate property damages of said in sum of $1360. assigned overruling The appel- error here is the only' for a new specifications lant’s motion trial. The by appellant of that motion on relied is that the deci- sion contrary of the trial court is law. proper
It
to first
seems
consider the assertion that
upon
this lease conferred
perpetual
renewals. The law does not favor
perpetual
A
leases.
lease will not be construed
conferring
as
renewals un
clearly
provides,
language
it
plain
so
less
so
unequivocal as
leave no doubt
that such was the
parties.
purpose
will,
intention
A lease
if
possible,
so
a perpetuity by
construed as
avoid
Jur.,
32 Am.
Tenant,
p.
renewal.
Landlord and
§968,
813;
C.J.S.,
Tenant,
606;
p.
51
Landlord and
§61,
279;
(1896),
L. R.
Anno.
Brush v. Beecher
A.
420;
Rutledge
(1904),
Mich.
N.
Tischner v.
W.
Pac.
Wash.
v. Board
Diffenderfer
(1894),
Public
120 Mo.
S.
Schools
The lease shall, option, be entitled at his . . the lessee “. renewing privilege this lease right and of to with and there- the terms and conditions under all shall, at of, successively, providing that said lessee any expiration (30) days of thirty before least lease, re- any successive year period this or two intention thereof, give of his notice written newals lessors; upon or the 3rd that to the so to renew may, at their subsequent any option, renewal the lessors and above annual rental over increase the ($600.00) Hundred herein reserved of Six the rent Sixty ($60.00) Dol- per year in the sum Dollars lars any year period thereafter.” per year for two language, foregoing in that It must be conceded an intention isolation, strongly indicative would be renew upon the lessee to confer however, note, that indefinitely. lease We two-year original are for term and the renewals lease, exception only of the periods and the with renewals, covenants provision for successive contains only usually appear short term leases. Nowhere in that any appropriate find instrument do we in the lease, ordinarily apt used to create words time,” perpetuity,” “forever,” “in etc. “for all such as agree giving to “suc cannot We avail that such renewals are means renewals” cessive end. The forever and without to the able (cid:127) imports word “successive” concatenation. It not -does define duration. provides expiration “at
The lease the lessee thereto, any lease herein made or renewal will good yield premises up said to the in as condi- lessors upon by entered tion as when the same shall be said provision, appropriate . while lessee. . .” This short *6 leases, totally inconsistent with the idea term seems might parties a term last that the had in mind which may put the lessee centuries. The use to which several “conducting general premises to mer- the is restricted business,” chandising not which would seem expect as one to find in a lease in covenant such would perpetuity it perpetuity. a lease in could Construed as particular up property forever for one to tie this serve use, regardless whether, pass- after the and narrow might prop- ing many years, make the the location purposes. erty for other much more useful valuable payment of “to said the rentals provides for The lease agent, duly E. Leitzan authorized or their lessors scarcely Indiana,” yet con- Hammond, it could have been agent would live forever. templated their Lietzan that year subject pro- per to the fixed at The rent is $600 any subsequent renewal “upon or the 3rd vision the may their increase annual at the lessors per Sixty ($60.00) Dollars rental, in the sum ... If lan- period thereafter.” any two-year year for one to but limit the lessors' guage construed were period, it would renewal one in rent for but increase per- lease in provision in a unreasonable to be an seem increase of to an entitle them petuity. If construed renewal, the perpetuity, 3rd after year in per $60 infinite. become in time would rent limits which no lease reasons For obvious aas could be construed himself lessee to renew to perpetuity. Here initial terra is lease in heirs, granted Geyer, to “Ira B. to his administrators,” assigns, but when executors and privilege is extended we come to renewal clause heirs, assigns, only. are' not men etc. to the lessee His running necessary with It is not to a covenant tioned. assigns, used, heirs, etc. be the words land that use, use, the manner of or the failure use but discovery important may to the be most those words those parties. The inclusion of the intention of another, may place, and their omission in words one Beecher, significant. supra; Watts Brush See v. be most (1923), 139 N. E. Union Mass. v. Bruce (1912), E. McGinty 212 Mass. 98 N. Trust Co. language Considering this, other much of the 679. point out, it pause we not lease which will not to renew the lease was to us seems lessee, privity but with the instead to those in extended personal to him. conclude, an examination and consideration from We *7 contract, it that provisions the lease of all of the perpetual clearly provide re for does not so the that such was leave no doubt to newals as parties. purpose intention of the and however, urges that proposition, the The right extends the though not one which the lease is even grant expressly renewals, it does perpetual to right to renewal, right it is his and to a second alone, renewal, upon that which and a second general rule is depends. The of this case the decision than one renewal more provides for which a lease that Jur., enforced, Landlord Am. given effect and will be a R. but 812; A. Tenant, p. note 123 S. §966, and or general for renewal terms a lease in provision in providing as construed will be the lease continuance Ten- Jur., and Landlord Am. only one renewal. for ant, 813; p. S., §968, Tenant, 51 C. J. and Landlord p. 605; Hallock v. Kintzler §61, (1943), 142 Ohio St. 51 N. E. 2d Rep. 287, 905; v. Board Pub- Diffenderfer Schools, supra. lic is provides
It true “upon the lease here that the 3rd any subsequent or may, renewal lessors at their
option, oyer increase the annual rental and above the rent herein reserved of Six Hundred ($600.00) year per Sixty sum;of Dollars in the ($60.00) year per any year period Dollars for two there after,” agree but we cannot thereby speci that the lease provides fically renewal, must, for a third that it therefore, necessity right include second re provision expressly grant right newal. The does not subsequent renewal, to a third or purport nor it does Bearing do so. mind in that the lease should not be con perpetuity strued as a lease in if it can be construed otherwise, provision only must considered aas recognition might fact that the lease be renewed provide or three more times and to for an increased in rental covenant event. Since the for renewal does perpetuity, not authorize renewals in it must be limited single language clearly to a in the renewal absence of authorizing a different number. right have held that lease does not
We
confer the
If,
fact,
renewals.
in
the lease does extend
to the lessee the
to more than one renewal
perpetuity,
but
than the
less
renew
the number of
renewals which
lessee would
spelled
be entitled is not
out
The lease
lease.
would, therefore, be so indefinite and uncertain in that
regard
provision
would be unenforceable.
Tenant,
596;
S.,
p.
§56b,
Landlord
C. J.
Am.
Jur.,
p.
Rad
Tenant,
Landlord
Abeel v.
§958,
*8
297,
Rep.
(1816),
Y.
Am. Dec.
N.
Johnson’s
cliff
(1930),
S. C.
et al. Hall et ux.
Anderson
We conclude judgment and the must renewel of the lease a second and it is affirmed. opinion. Emmert, J., concurs with CONCURRING OPINION I agree reached the result with Emmert, J. the cove
majority opinion, and the construction provide for re not renewals did nant for provided renewals However, only for the lease newals. landlords, during the lives to be exercised living for being the time the at still husband litigation. term now for the exercised renewal was April.30, since surviv term This .ended options January further ing landlord died extinguished. were renew
Note.—Reported in
Bruce 28,753. Filed March 1952.] [No.