50 Ind. App. 132 | Ind. Ct. App. | 1912
— This was an action commenced by appellee against appellant before a justice of the peace for the possession of certain real estate. Appellee had judgment before the justice, and appellant took an appeal to the Clay Circuit Court. The venue was changed to the court below, where the issues were submitted to a jury, and a verdict returned in favor of appellee for the possession of the real estate described in the complaint, and assessing damages in its favor for the detention thereof. The judgment was in accordance with the verdict.
Appellant’s motion for a new trial was overruled, and this ruling and the ruling sustaining a demurrer to appellant’s plea in abatement are separately assigned as error.
In the case of Wright v. Roberts (1867), 22 Wis. 161, the contract was much more favorable to appellant’s contention than the one at bar, and in that ease it was said: “ It is true, that in such eases, the primary object of the contract is not to lease the property, but to sell it. But as human affairs
In this case, the contract, in effect, expressly provides that appellant shall have- and hold possession of the premises as a tenant, and in this particular it is more reasonably susceptible to- the construction placed on it, than was the contract before this court in the case of Baltes Land, etc., Co. v. Sutton (1900), 25 Ind. App. 695, 57 N. E. 974, which clearly authorized the instruction now under consideration. In that ease it was said: “But we know of nothing to prevent the parties from agreeing that, although the contract is originally one of purchase, it may become, under certain conditions therein named, a lease. It is a matter about which the parties might rightfully contract and the contract when made may be enforced. Appellant, as assignee of the contract, went into possession whereby it might ultimately become the owner of the land. It could become such owner only by compliance with the contract, and making the payments therein provided. But it made default in the payment due July, 1898. The contract provided for this default, and from its express terms, appellant having taken possession, the conclusion necessarily follows that the relation of landlord and tenant then existed. ’ ’
The provision in the case last cited wras again considered by this court in the ease of Prather v. Brandon (1909), 44 Ind. App. 45, 88 N. E. 700, and there held to “explicitly create the relation of landlord and tenant.” The instruction was not erroneous.
Judgment affirmed.
Note.- — Reported in 98 N. E. 70. See, also, under (1) 31 Cyc. 527; (2) 31 Cyc. 358; (3) 24 Cyc. 454; (4) 9 Cyc. 591; (5, 6) 24 Cyc. 1021; (7) 3 Cyc. 445. As to option to purchase given by lessor to lessee, see 118 Am. St. 598. On the question of lease of land as conveyance, see 11 L. R. A. (N. S.) 99. For lease as conveyance within meaning of recording statutes, see 24 L. R. A. (N. S.) 879.