34 Ind. App. 119 | Ind. Ct. App. | 1904
Suit upon a gas lease to recover rentals, damages for failure to furnish gas for domestic purposes, and to cancel the lease and quiet title.
The first paragraph of amended complaint avers that on July 25, 1889, Joseph IIcGrew, being the owner of certain described land, leased to a firm named the privilege of drilling for gas and oil; that soon afterwards the firm assigned its rights as lessee to appellant; that on January 6, 1900, appellee purchased the land from one Hinton, who was the grantee of McGrew, together with his rights under the lease; that appellant for some time did furnish gas under the terms of the lease. Failure to perform the agreement to furnish gas according to the terms of the lease since appellee purchased the land is averred, and that the gas to have been furnished for fuel and lights under the
The second paragraph of complaint avers the ownership of the land, the execution of' the lease, its assignment to appellant, and the purchase of the land by appellee in the first paragraph; that the rents under the lease were paid to appellee’s grantor to July 25, 1899, since which time no payments have been made thereon; that there is due and unpaid to appellee, under the terms of the lease, accrued rents from January 6, 1900, to July 25, 1900, in the sum of $20. A copy of the lease is made an exhibit.
The fourth paragraph avers appellee’s ownership and possession of the land; the execution of the lease, a copy of which is made an exhibit; the transfer of the lease; that appellant has failed and refused to furnish to him natural gas for fuel and lights as therein provided, and has failed and refused to pay appellee the rents therein stipulated, appellant knowing that appellee had purchased the land from a grantee of McGrew, .January 6, 1900, together with all rights held by him under the lease; that appellant refuses to cancel the lease, “but claims to have and'hold some rights and privileges therein and thereunder” which are adverse to appellee’s rights and a cloud upon his title, and demands that his title he quieted. ■ The original complaint was filed December 11, 1900.
Separate demurrers to each paragraph of complaint were overruled. Appellant answered in two paragraphs, to the second of which appellee replied in denial. Over appellant’s motion for a new trial, judgment was rendered quieting title in appellee to the land involved, and that appellee recover of appellant damages in the sum of $30 and costs. A motion to modify the judgment by striking therefrom
Eor the reasons given, we think the second and fourth paragraphs are insufficient, and that the separate demurrers to each of these paragraphs should have been sustained.
.Judgment reversed.