192 Iowa 319 | Iowa | 1921
Appellant admits executing- the contract, and admits the terms of the same, but alleges that he performed all the terms of the contract; that, in pursuance of the terms of the contract, he executed and delivered a deed for the premises to appellee on or about October 30, 1918, and made full performance of the terms of the contract; that the lease complained of was void; and that appellee failed in his possession because of his own neglect and omissions; that the title received and held by appellee by virtue of the deed of October 30, 1918, was paramount to the lease of the premises; and that appellee lost the possession of the premises and the rental by his own fault, omissions, and failures.
II. Error is assigned to Instruction No. 3, wherein the court instructed the jury that the contract had been established beyond dispute, under which, by its terms, appellee was to be given possession’March 1, 1919; and that it was further established without contradiction that appellant did not so give appellee possession; and that the only remaining issue was to fix the amount of appellee’s damages.
Appellee, by contract in writing, traded certain town property to appellant for a farm. The contract is dated October 24, 1918, and contains the following provision:
It appears without dispute in the record that one Frank Pierce owned the land in September, 1918, and in that month conveyed the same to Elsie Seligman, by deed in which the name
Counsel for appellant take the position that the deed from appellant to appellee, delivered in October, 1918, and accepted by appellee, invested the appellee with title, and with the right to possession of the premises paramount, to the right of possession of the lessees; that the lease from Seligman to Sink was void; that the.subsequent leases to Hammons and Cunningham were void; that both appellant and appellee took title without notice of the leases; that the title of appellee was paramount to the leases; and that he failed to enforce his right of possession at his own peril. Counsel for appellant further contend that, when the deed to appellee was executed, the contract of exchange which preceded the deed, and which provided for possession on March 1, 1919, was merged in the deed, and that the contract^ was not competent evidence to show plaintiff’s right to possession on March 1, 1919.
The record is clear that the tenants had valid leases for the year beginning March 1, 1919, and ending March 1, 1920, and
“I knew that Hammons and Cunningham were in possession. I did not talk to either of them, to find out when their leases expired.”
Under such situation, the rule contended for by appellant— that, where one is in possession under a known right of possession, such possession is referable to such right, and the purchaser can rightfully assume that the possession is bottomed on such right, and need not inquire further — can scarcely be applied to lessees who rent for short periods, and often renew their leases. Seasonable inquiry of the lessees in possession would have disclosed their claim.
Appellant’s position that it was not competent to show by the contract when plaintiff was to have actual possession of the land is not tenable.
It was not error, under the facts shown in the evidence, to instruct the jury, as the court did, that the contract by the terms of which appellant agreed to give appellee, on March 1, 1919, possession of the farm described in the contract, was established by the evidence without dispute; and that the evidence established without contradiction the fact that the appellant did not give the appellee possession of the farm on March 1, 1919;
III. Complaint is also made, in argument only, as to the measure of damages adopted by the instruction. The giving of the instruction defining the measure of. damages is not. listed among errors relied upon for reversal, and cannot be given attention.
To ascertain what evidence was received, and the nature of it, and what objections, if any, were made, we must go to the record.
Appellee testified that, in January or February, 1919, he learned from Hammons of the leases which Hammons and Cunningham had, and took the matter up with appellant as to whether he (appellee) could obtain possession of the land; that, a little later, in February, appellee, appellant, Hammons, and Cunningham met, to consider the leases and Avhether appellee could get possession of the land; that Hammons and Cunningham said they had the land leased, and appellant said that, if they had, he did not know it; that he and appellant then agreed to lay the facts before appellant’s attorney, aiid abide by his decision.
“Q. Whom did you see? A. Mr. Higbee, his attorney. (Defendant objects to the question for the reason that it is incompetent, immaterial, and irrelevant, and improper to relate the proceedings in an attempt to compromise. The court: Defendant may answer for the. present. Defendant excepts to the
Unquestionably, the testimony was of offers of compromise. The testimony of appellee shows that appellant agreed to pay the rent for 1919, and at another time offered to pay $600, in settlement of appellee’s claim against appellant. This testimony was incompetent for any purpose. When the first question was asked by counsel for appellee, to bring out what occurred in Mr. Hig-bee’s office, apt objection was made; but the court permitted the witness (appellee) to answer, and to state that they went to Mr. Higbee’s office, and that appellant stated their controversy to Mr. Higbee, and that Higbee said, “There is nothing to this, George [Bilbo].” This answer was stricken by the court, but the court then permitted appellee to relate further statements made by appellant. This the court did although no question was
We find no reason to disturb the verdict and judgment, and the ease is affirmed. — Affirmed.