Kiernan v. Terry, 26 Or. 494

Kiernan v. Terry

26 Or. 494 | Or. | 1894

Opinion by

Mr. Justice Wolverton.

*4981. Two questions are presented by this record for our consideration. First, does the proof support the allegations of the complaint as to the situs or location of the premises for which plaintiff seeks to recover rent? and, second, is the position of the defendant such that he is enabled to dispute the title of plaintiff in the premises actually occupied by him? The proof shows that the floating-house or beer garden was anchored to piles driven in the bed of the Willamette River fifty-five feet from the Ross Island shore, and between the shore and the channel of the river, at such a point as not to interfere with the free use of the river for the purpose of navigation. The defendant paid rent to the plaintiff for the premises occupied by this floating-house for the space of eight months immediately preceding the date of the alleged leasing, for which rent is sought to be recovered. During the greater part of these eight months the house or boat was connected with the northeast corner of Ross Island by a pontoon walk. This walk defendant removed prior to August first, eighteen hundred and ninety-two. As to whether plaintiff had knowledge of this removal is in dispute, but. the fact is not material. The defendant actually used and occupied the premises in question for the entire twelve months for which rent is sought to be recovered; but it is contended that this proof cannot support the action, for the reason that the description of the premises contained in the complaint is so vague and indefinite as to render the lease void if one existed, and for the further reason that the defendant did not occupy the premises attempted to be described. This is the ordinary action for use and occupation, and lies whenever the conventional relation of landlord and tenant subsists between the parties to it upon an agreement express or implied: Taylor’s Landlord and Tenant, § 636. No claim is made, nor does the evidence disclose, that any lease in writing was executed so as to *499confine the parties to the particular description therein contained. It is sufficient, therefore, if the premises can be ascertained and located from the allegations of the complaint. It is averred that “plaintiff leased and let unto the defendant the premises known as the northeast corner of Ross Island, situated in the county of Multnomah, State of Oregon, for a floating-house or beer garden.” If the averments touching these premises had stopped here, it is doubtful if the description would have been sufficient to support the lease, but it is further alleged “that defendant used and occupied said premises aforesaid from the first day of August, eighteen hundred and ninety-two, to the first day of August, eighteen hundred and ninety-three. ” Construing these two allegations together, it becomes apparent that what before was a vague and possibly insufficient description is now rendered definite and certain.

It is not an uncommon thing in practice to describe premises leased as those certain premises situated (giving the county and state) now in the possession of, or now occupied by, some certain person (naming him); and no question is made of the sufficiency of such a description. A lease of a farm now in the possession of A will pass such portion of the estate as A is in possession of, though it will not pass such portion as he does not possess. The premises described as ‘ ‘ the building now or lately occupied by Richard Roe,” or “the premises known as the Warren Farm,” or “the Phelps Place,” designating the town in which they are located, has been held to be sufficient, because the lease furnishes data from which the premises demised can be identified: Wood on Landlord and Tenant, § 211. So it is with this complaint. It furnishes sufficient data from which the identical premises for the use and occupation of which the rental is alleged to be due from defendant can readily be ascertained and *500located. The maxim id certu est quod certurn reddi potest is well adapted to the situation. This is possibly a liberal construction of the complaint, but it is undoubtedly permissible, in view of the fact that neither a demurrer nor motion to make more definite and certain was interposed. The defendant has not been taken by surprise, nor misled in any manner. His answer and the evidence adduced by him go to show unmistakably that he was fully equipped and prepared to contest the further payment of rental for the identical premises which plaintiff had in mind. We therefore conclude that the premises used and occupied by the defendant were sufficiently described in the complaint to entitle plaintiff to recover in this action, and that the proof offered tended to support the allegations of the complaint.

2. As to the second proposition, it is not disputed that the defendant occupied the premises in question, and paid rent therefor to the plaintiff for eight months continuously, immediately prior to the term for which rent is now sought to be recovered. His occupancy has been unbroken and continuous from the first day of November, eighteen hundred and ninety-one, to the first day of August, eighteen hundred and ninety-three. His only defense to the further payment of rent for the same premises, as disclosed by his answer, consists in specific denials of the allegations of the complaint. No claim is made that plaintiff was ousted by any person holding a superior or better title, and that defendant has attorned or is liable to attorn to him, or that he at any time surrendered the premises to plaintiff, after acknowledging the existence of the relation of landlord and tenant as between them. It goes without saying that such a defense would have to be affirmatively set up in the answer, and could not be proven under an issue made by specific denials. It is a well settled rule of law that a tenant, having taken possession under a lease, *501is estopped to deny his landlord’s title at the time it was made, so long as he continues in possession under the lease. This rule is founded upon the injustice of permitting a person who has obtained possession of the property of another by admitting his title, to deny that title, and, in case of the landlord’s failure to establish it, to hold the premises himself. And evén after his lease has expired, it is not competent for him to deny his landlord’s title without surrendering possession to him, or attorning, or at least giving notice to his landlord that he shall claim under another and valid title: Hilbourn v. Fogg, 99 Mass. 11; Miller v. Lang, 99 Mass. 13; Morse v. Goddard, 13 Met. (Mass.), 179, 46 Am. Dec. 728.

3. The payment of rent raises the implication of a tenancy and of a liability to pay further rent during occupancy: Voigt v. Resor, 80 Ill. 331; Cressler v. Williams, 80 Ind. 368; Leitch v. Boynton, 84 Ill. 179. Where the relation of landlord and tenant is shown to exist, the landlord is not required to show that his title is good against all the world, nor is it necessary to prove title at all. The only thing needful to be shown is that defendant entered or occupied as tenant: dressier v. Williams, 80 Ind. 368. It is sufficient to establish plaintiff’s title to show that defendant is a tenant paying rent: People v. Simpson, 50 Cal. 306. These authorities render it unnecessary to consider what, if any, title the plaintiff had in the premises occupied by defendant’s floating-house or boat. There was evidence tending to prove that defendant admitted title to be in the plaintiff by occupancy, and the payment of rent to him for the premises in question for eight months, and that defendant thus continued to occupy without apparent change of relationship.

4. The fact, if such is a fact, that defendant, without surrendering possession, notified the plaintiff that he would not pay anything more as rental, for the reason that *502plaintiff had no rights in the premises, did not sever the relation of landlord and tenant, and much less did the removal of the pontoon walk by the defendant have that effect.

5. But it is claimed that defendant was induced to pay rent, and thereby to acknowledge plaintiff as his landlord, through the fraudulent representation that the defendant was liable to plaintiff for rent. If such was the case, and the representation amounted to a legal fraud, which we do not believe, defendant should have surrendered possession as soon as he discovered the alleged fraud, and thereby severed his relations with plaintiff, if he desired to rescind: Milliken v. Thorndike, 103 Mass. 386; Whitney v. Allaire, 4 Denio, 554.

6. However, defendant’s further and separate defense does not purport to be directed to plaintiff’s cause of action, and amounts simply to a plea of set-off or counterclaim. Under this plea it would not be competent to defeat any contract of leasing that may exist between the parties by reason of fraud in its inception. From these considerations it is apparent that the court below was in error in its instructions to the jury, hence the judgment is reversed and a new trial ordered.

Reversed.