No. 2089 | N.M. | Sep 24, 1919
OPINION OR THE COURT.
(after stating the facts as above.) As shown by the statement of facts, this, is a suit to recover damages in tort against three defendants for conspiracy to deprive the plaintiffs of the benefit of a lease from the defendants Harper to the plaintiffs. The trial court found as a fact that the defendant Harris did not conspire with the other two defendants, nor did he take any part in what the court found 'to be au eviction of the plaintiffs by the Harpers. The court further found that the defendant Harris took possession of the premises, and that iilaintiffs were not on the premises when such possession was taken. Under this state of findings by the court, the plaintiff in error, Harris, contends that the court below erred in finding against him. No specific findings of fact were asked by the defendants in error in the co.urt below and none were made by the court, except in a short written opinion in which the court “finds that the ranch property did not produce the income annually as claimed by the plaintiffs,” and further he “finds the issues in favor of the plaintiffs and fixes the damages at $2,000, based upon the alfalfa crop, the apples, and the general crops grown on the place.”
It will be noted that the court in the third finding found that the plaintiffs had not actually abandoned the premises, but were not thereon when the defendants went into possession, and in the fourth finding that the defendant Harris had actual and constructive notice of the lease from the Harpers to the plaintiffs at the time he took possession. It further appears from the transcript of the testimony that Harris admitted that the plaintiffs came upon the property and demanded possession from him on August 28, 1914, as is alleged in the plaintiff’s second amended complaint.
There also appears in plaintiff’s second amended complaint the allegation that the defendant Harris entered upon the plaintiff’s property without plaintiff’s consent. Counsel for defendants in error, plaintiffs below, argued in his brief that Harris became a joint tortfeasor together with the Harpers in evicting plaintiffs, and asks for an affirmance of the judgment below upon that ground. But the court specifically found that Harris did not conspire in the eviction of the plaintiffs by the Harpers, nor did he have anything to do with the acts which the court held amounted to an eviction of the plaintiffs. The- decision below cannot be sustained upon that ground. The action as stated before, is an action in tort, and the decision below may be sustained upon the ground of the well-known principle of law that a tenant in possession has the right to such possession against the world during the continuance of his lease and may maintain an action for damages for the disturbance or deprivation of such possession. Jones on Landlord and Tenant, § 349; 24 Cyc. 1056; Dec. Dig. subject “Landlord and Tenant,” § 132, and cases cited. That the defendants in error could have sued Harris in ejectment to regain possession and for damages does not deprive them of the right to sue in tort for interference with their possession. The plaintiffs below might have also waived the tort and .sued the defendant Harris on the lease of his grantors, the' Harpers, under the well-known principle that a covenant of quiet enjoyment runs with the land and binds the transferee of the reversion. Gidden v. Second Investment Co., L. R. A. 1915C, p. 220, and cases cited. The plaintiffs chose to sue in tort for the disturbance of their possession. The complaint contains allegations of entry by the defendant Harris without right and refusal to vacate. The trial court found that the plaintiffs had not abandoned the premises at the time Harris entered, and that Harris had actual and constructive notice of the outstanding lease, and awarded damages against Harris on the basis as stated'in his written opinion of the value of the outstanding leasehold estate in the plaintiffs of which they were deprived. The proof in the case sustained these allegations in the complaint, and although the court found that the defendant Harris had no part in the conspiracy or wrongful acts of the defendants Harper, he nevertheless held the defendant Harris liable for his entry and retention of the plaintiffs’ outstanding leasehold. The decision of the lower court is sustained by the evidence and the findings, and its decision is the correct legal conclusion from the facts so found.
The decision of the lower court is therefore affirmed, and it is so ordered.