187 Iowa 349 | Iowa | 1919
This was an action in forcible entry and detainer, brought by the administrator of the estate of Rhoda Kelley, deceased, and involves the possession of 320 acres of land in Pocahontas County. The controversy is between the plaintiff and the defendant C. J. Kelley, both sons of Rhoda Kelley. The other defendant, also a son, disclaims any interest in the controversy, and is not involved in this suit. Rhoda Kelley, the mother of the parties, owned the land in controversy. She died on the 9th day of October, 1917, and this .plaintiff is the duly appointed administrator of her estate. Some time in the summer of 1917, she executed a power .of attorney to this plaintiff, to look after her business, rent her land, collect the rent, and care for her property. Soon thereafter, this plaintiff, acting under the power of attorney, leased the land in controversy to one Karnes, for the term of one year, commencing March 1, 1918, and ending March 1, 1919. This lease was in writing, and was executed in the presence of and assented to by the said Rhoda.
This defendant, prior to the 1st of March, 1917, resided
The contention, however, of the defendant is that, before the power of attorney was executed to this plaintiff, before the lease to Karnes was made, and before his mother’s death, he had made an oral lease with his mother for the possession of the premises, commencing March 1, 1918, and ending March 1, 1919; that, at the time he made this lease, he was in possession of the land, with the knowledge and consent of his mother, under some arrangement which does not clearly appear.
We would gather from the testimony that his occupation during the year 1917 Avas permissive only, and subject to his mother’s will. If this be true, then he was a tenant, if tenant at all, at the will of Rhoda, and all his rights under such occupancy were, terminated by the 30 days’ notice, and the plaintiff, whp is authorized to bring this action, under Section 4209 of the Code of 1897, had a right to maintain it, and, upon the service of the notice terminating the tenancy, and upon service of the 3 days’ notice required by statute, was entitled to oust him from the premises. The fact that he was a tenant at will or sufferance during the year 1917 would not justify his ouster, even upon the service of this notice, if he had acquired a right to the possession for the year beginning 1918. There is involved in this suit only his possession after March 1, 1918. At the time of the trial, Rhoda was dead. The defendant’s mouth was
“Mrs. Karnes is father’s sister [Rhoda’s daughter]. They live about a mile from where I live. I went over to the Karnes’ home from my home on that day. Papa [meaning C. J. Kelley] took me over and came after me. . I saw the plaintiff there; also saw Tom Calligan. Saw -John T. Kelley get the power of attorney that day. I heard father and grandmother have a talk there that day. That talk took place in her bedroom. Father, grandmother, and I were all that were present. Papa asked her if he could have the place for another year, and she said ‘Yes!’ ”
She testified further that she heard her grandmother say that papa should have the first chance at the place, and cheaper than anybody.
The court, therefore, erred in its finding and judgment, and its action, for that reason, must be reversed.
It is ordered that the costs of the trial in the justice court and the trial in the district court and the cost of this appeal be taxed to the defendant. — Reversed and remanded for judgment in accordance with this opinion.