46 Ind. App. 369 | Ind. Ct. App. | 1910
The appellee’s amended complaint is in two-paragraphs, demurrers to each of which were overruled. Answers of general denial were filed. Apellants moved that the issue he submitted to a jury. The motion was overruled, and the cause was tried without a jury. The finding, as well as the judgment, was for appellee, for possession of the real estate described and $482.54 damages. Appellants’ motion for a new trial was overruled. The first paragraph of complaint sought to recover certain described real estate, to the.
The sufficiency of this pleading primarily depends upon the construction of a lease made by appellee to appellants.
The lessor (appellee) by said instrument, leased to appellants 173 acres of land on the following terms:
‘ ‘ The lessees shall, and agree to, clear said timber land for cultivation, and plant; cultivate and tend not less than fifteen acres each year until all of said timber land is clear, and for so doing the lessees shall have the absolute and exclusive use of the land so cleared for two annual crops for each fifteen acres so cleared, and after the use of each fifteen acres so cleared for two successive annual crops, as aforesaid, such fifteen acres shall revert to the lessor, and be released and freed from this lease, and the lessees shall have no further right to or control over each or any fifteen acres when so released, that is to say, the lessees shall have the use of the land for two successive annual crops for clearing the same as aforesaid.”
The lease provides as follows:
“And the lessees covenant to release and turn over to said lessor the land as cleared as herein provided in good condition, and failing fully and faithfully in letter and spirit to perform their covenants and agreements, as herein contained, it shall be lawful for said lessor to reenter said premises, and to have such premises again without let ■ or hindrance, and this lease and*372 everything therein contained on said lessor’s behalf to be done and performed shall cease, determine and be utterly void. ” ,
The stipulation is to the effect that the lease in the contingency specified might be terminated, and become “void so far as the rights of appellants thereunder are concerned.”' In other words, that it is voidable by appellee in certain contingencies. Island Coal Co. v. Combs (1899), 152 Ind. 379.
The plaintiff avers full performance on his own .part, and in his second paragraph asks judgment on account of breach of the contract in certain particulars specified.
The action is one to recover possession of real estate. §1096 Burns 1908, §1050 R. S. 1881. And see Woodward v. Mitchell (1895), 140 Ind. 406; Island Coal Co. v. Combs, supra.
In such cases trial by jury may be demanded. Puterbaugh v. Puterbaugh (1892), 131 Ind. 288, 15 L. R. A. 341; Trittipo v. Morgan (1885), 99 Ind. 269.
Judgment reversed, with instructions to sustain the motion for a new trial.,