28 Ohio C.C. (n.s.) 401 | Ohio Ct. App. | 1915
Lead Opinion
This cause comes into this court on appeal from a judgment of the common pleas court.
The plaintiff, Mary A. Harlan, avers in her petition that she is the owner in fee simple of a certain described farm in Madison township; that defendant, Edward Veidt, entered upon said premises as the tenant of plaintiff’s grantor; that said defendant’s term of rental expired March 1, 1914, but
In his answer defendant admits plaintiff’s title in fee simple; admits that he is about to plow and threatens to plow and sow as alleged in the petition; admits that he claims to be entitled to retain possession of the premises after March 1, 1915; and denies each and every other allegation of the petition. 'Defendant further sets up that he entered into the possession of said premises on March 1, 1911, under a lease for three years from S. Jennie Sorg, who is plaintiff’s grantor and was the owner in fee simple of said premises, and attaches
The reply denies that defendant exercised his option or privilege of two additional years, avers that he failed to exercise his privilege for two additional years, and pleads that defendant is estopped to claim his right of occupancy and possession for said additional term of two years.
The copy of the lease, and the original lease, which were offered in evidence, contain these provisions as to the term of the lease:
“For and during the full term of three years next ensuing, commencing on the first day of March, 1911, and to be fully completed and ended on the 28th day of February, 1914; with the privilege of two additional years at the expiration of this lease.”
And it contains the following covenant as to the rent for the additional term of two years:
“It is further agreed by and between the parties that said lessee shall have the right, privilege and option of an additional term of two years from and after the expiration of the term hereby created; upon the condition, however, that the rent for any*48 additional term after the expiration of the three years herein granted, shall be the sum of $800 for each and every year; the rent to be payable in advance as hereinbefore stated.”
It appeared in evidence that defendant entered into possession under said lease and has remained in continuous and uninterrupted possession ever since; that on March 2, 1914, S. Jennie Sorg conveyed by warranty deed to plaintiff said premises, which deed was recorded March 3, 1914. In said deed was the following stipulation with reference to defendant’s lease: “And further subject to a lease on said premises granted by S. Jennie Sorg to Edward Veidt, to which lease reference is hereby made.” Plaintiff therefore bought said premises with full knowledge of and subject to said lease which was in writing and duly witnessed and acknowledged.
The transcript of the evidence on which the case is here submitted discloses that the lease and deed were offered in evidence; that plaintiff had a contract to purchase the premises, made in October, 1913, but not closed up until March 2d or 3d, 1914; and that some time in the early part of December, 1913, Dr. Harlan, the husband and agent of plaintiff, met Veidt, the defendant, in Middletown and had a conversation with him about the farm. He told Veidt that he had bought the farm. Veidt complained of the high rent and the need of repairs, and said that he did not intend to pay that $800 “until a h-of a lot of fixing was done.” Veidt said nothing about leaving the farm or surrendering it at the expiration of the term, March 1, 1914. That was the only conversation between
Without undertaking to review the evidence fully, it appears to be sufficiently disclosed that Veidt did not vacate or surrender before March 1, 1914; that he never said he would do so; and that he continued in possession after March 1, 1914, in pursuance of his right or privilege for two additional years, according to his statement. He was in under the lease, and in our opinion the mere holding over after March 1, 1914, was an exercise of his option or privilege to remain for the two additional years. It was not necessary for him to indicate, otherwise than by continuing in possession, after March 1, 1914, that he made his election to remain for the additional term of two years. The holding over without any new agreement was an election on his part, and he was bound for the two years and liable to plaintiff for the two years’ rent at $800 per year as stipulated in the lease. We consider this provision in the lease as an agreement for an extension of the lease and not for a renewal. If it had been a provision for a renewal, then notice on Veidt’s part would be necessary in order to entitle him to remain longer. (Jones on Landlord and Tenant, Section 339.) But there is a distinction made in the cases between a renewal of a lease and an extension, and in the case of the léase before us, no notice is required to entitle the tenant to the additional term. Merely holding over under the lease constitutes an election to exercise the privilege or option. Jones on Landlord and
When there is an option to the lessee to have the same term extended, no notice of an election to have the term continue is necessary, unless it is required by a clause in a lease. Jones on Landlord and Tenant, Section 340; Terstegge v. First German, etc., Society, 92 Ind., 82; Montgomery v. Board of Commissioners, 76 Ind., 362; Mershon v. Williams, 62 N. J. L., 779; Chandler v. McGinning, 8 Kans. App., 421, and 18 Am. & Eng. Ency. of Law (2 ed.), 693.
The case cited by counsel for plaintiff, Keppler Bros. v. Heinrichsdorf, 5 C. C., N. S., 112, which holds that notice was necessary, was a case in which the lease stipulated for a notice to be given by the tenant of his intention to accept or decline, six months before the termination of the lease.
We are therefore of the opinion that the defendant, being liable for the two years additional rent under the extension of the lease, was entitled to remain on the farm and plow and sow, and the petition of plaintiff should be dismissed.
But whether this conclusion be sound or otherwise, we are further of the opinion that the plaintiff is not entitled to invoke the jurisdiction of a court of equity, as she has done in this case, when she has a plain, adequate remedy at law. Possession of this farm after March 1, 1915, is what the plaintiff sought. The plowing of the fields was not in the nature of waste, nor is it claimed that any substantial injury was being done to the freehold so as to entitle plaintiff to an injunction to
But it is averred that the defendant claims some title adverse to plaintiff’s title and is in possession. The evidence does not disclose this to be true, but, if it were true, then the plaintiff’s remedy would be an action at law in ejectment to recover the lands, under Section 11903, General Code, in which action all questions of plaintiff’s and defendant’s titles, legal or equitable, could be raised.
Nor can it be claimed that plaintiff can maintain this action as one in equity to quiet title, because she is not in possession of the lands, and it is only those who are in possession of the real estate who may maintain an action to quiet title, unless the plaintiff claims as remainderman or reversioner, which plaintiff in this action does not aver. See Section 11901, General Code; Ellithorpe v. Buck et al., 17 Ohio St., 72, 75, and Bailey v. Hughes, 35 Ohio St., 597.
Nor can the question of title be raised in an in
“A bill to establish a legal title and to restrain proceedings at law will not be entertained, no equitable circumstances appearing in the case and nothing that prevents a full defense at law.” 1 High on Injunctions (4 ed.), Section 101, and DeGroot et al. v. Receivers, 2 Green Ch., 198.
Injunctions in cases affecting the possession of real estate would not be countenanced by the court of equity; and this has been the rule, from the-earliest times. 1 High on Injunctions (4 ed.), Section 344, and Lady Poines’s Case, 1 Vern., 156.
If one is in possession without legal title, the remedy is at law and not by injunction. 1 High on Injunctions (4 ed.), Sections 359, 360; Pfeltz et al. v. Pfeltz et al., 14 Md., 376, and Toledo Exposition Co. v. Kerr et al., 8 C. C., N. S., 369.
The averments of the petition in the case at bar, as in the case we next cite, disclose an action for the recovery of real property, ejectment, and the facts set out in the-case cited are so similar to the averments of the petition in the case at bar that we might well decide this case on that authority. Raymond v. T., St. L. & K. C. Ry. Co., 57 Ohio St., 271, proposition 4 of the syllabus.
On the ground that plaintiff is not entitled to a decree under the facts of the case, and because this court as a court of equity has no jurisdiction, this being a case at law, the plaintiff’s petition must be dismissed at her costs.
Petition dismissed.
Dissenting Opinion
dissenting. I cannot agree with my associates as to the nature of this action as disclosed by the pleadings, nor upon the conclusions to be drawn from the evidence as to the right of nossession since March 1st, last.
Plaintiff alleges that defendant is plowing the fields and sowing rye, and her first prayer is that he be enjoined from so doing, for the reason that his right of possession will terminate on March 1, 1915, and that he is planting a crop that will not mature by that time. This prayer is further predicated upon allegations the substance of which is that such conduct on the part of defendant is equivalent to a threat to interfere with or totally deprive plaintiff of her possession after March 1, 1915, when, she avers, such right will accrue to her.
At the time plaintiff began this action below, she had no right of possession and claimed none. So that the 4th paragraph of the syllabus in Raymond v. T., St. L. & K. C. Ry. Co., 57 Ohio St., 271, so strongly relied upon in the foregoing opinion, has no application to this case. There the plaintiff had the right to possession, as stated in the syllabus. Basing its judgment on that fact, the court there held that plaintiff had a remedy at law. What remedy at law had this plaintiff when her action was commenced? None whatever.
If defendant had the right to plow one or two fields in November and plant rye, he had an equal right to continue plowing throughout the winter, until the whole farm was plowed. He had received written notice in July to vacate on March 1st and apparently acquiesced. No plowing was done, nor fall planting done, until long after the usual time,
As to the respective rights of the parties at this time I am also at variance with my colleagues. The law upon the subject of' the extension and renewal of leases is fairly well settled, but we differ in our application of the law to the facts in this case. I cannot enter into a discussion of the evidence. Suffice it to say that the testimony of Dr. Harlan, detailing the conversation in December 1914 with Veidt, is not disputed and stands as an uncontradicted fact on this record. Veidt’s positive statement cannot be taken but as a notice that he would leave the farm on March 1st. This, in view of his failure to retract what he said, and the failure of plaintiff to make any repairs prior to March 1st, terminated Veidt’s tenancy on that date. Then he refused, upon demand, to pay the rent and only paid it immediately after á quarrel with Dr. Harlan in the following June. It makes no difference what the law may be as to mere holding over in the absence of declarations. Such is not this case. It was the proper and natural thing for the new owner to inquire of Veidt what his future intention was with respect to the farm, and Veidt is bound by his unretracted, deliberate answer, followed on March 5th by a similar' declaration and his refusal to pay the rent then due under the terms of the lease upon which he now relies.
In discussing the subject, Jones, in his work on Landlord and Tenant, Section 341, says:
*56 “Yet the tenant’s announcement of his intention not to accept the extension would override the presumption arising from his continuance in possession.” See, also, Barnett v. Feary, 101 Ind., 95.
The reference in the lease to the deed to Mrs. Harlan certainly gave Veidt no greater rights than he then had. Nor did the payment of the rent in June, 1914, for that year to Mr. Walburg, or anything written or said by Veidt at the time to Walburg, have any effect upon the status of Mrs. Harlan. Witness the letter by Walburg to Veidt, of June 15 th.
I am of opinion that plaintiff was entitled to an injunction when the action was brought and that right is not impaired by reason of the fact that she asked other relief to which she was not entitled.
This question is so coupled with the other that it is unnecessary to say that I am also of the opinion that defendant’s right to occupy the farm ended on March 1, 1915.