Myer v. Roberts

89 P. 1051 | Or. | 1907

Opinion by

Mr. Chief Justice Bean.

1. The lease or agreement between the defendants and Huston for the possession and cultivation of the hop yard for the years 1903 and 1904 was a personal contract and not assign-, able to a third person without consent of defendants. • An attempt to make such an assignment would work a forfeiture of Huston’s interest and give the defendants an immediate right of re-entry: Meyer v. Livesley, 45 Or. 487 (106 Am. St. Rep. 667: 78 Pac. 670); Randall v. Chubb, 46 Mich. 311 (41 Am. Rep. 165: 9 N. W. 429). When, therefore, Huston undertook to assign his interest to the plaintiff and put the latter in possession it worked a forfeiture of the agreement and authorized the defendants to immediately re-enter and take possession of the property.

2. The evidence shows they did this in a peaceable and orderly manner on March 11th, and were thereby restored to possession: Smith v. Reeder, 21 Or. 541 (15 L. R. A. 172: 28 Pac. 890). At that time the hop roots had sprouted and were growing, and upon re-entry by the defendants the title thereto vested in them. When the estate of a tenant or occupant of land is forfeited, or the tenancy terminated by some act of his, and the landlord or owner re-enters, the tenant or occupant is not entitled to the crops growing thereon, but they pass to the landlord with the title to the land: 8 Am. & Eng. Enc. Law (2 ed.), 319; Taylor, Land. & Ten. § 535; Samson v. Rose, 65 N. Y. 411. This latter case is much in point. In that case the plaintiff leased his farm to Tripp & Greene for five years for an annual rent, payable in January of each year. There was a clause authorizing the re-entry of the lessor in ease the rent was not so paid. Tripp & Greene did not pay the rent due in January, 1870, and on March 20th thereafter the plaintiff brought an action in ejectment to recover possession of the premises, and in due time recovered judgment, and was put in possession. Pending the litigation Tripp & Greene sublet the premises to the defendant, who raised a crop of grain from seed sown after the commencement of ejectment proceedings, which had been cut but not removed from the land at the time plaintiff was put in possession under the judgment in ejectment. The question in the case was as to the title to such grain. The court held that it belonged to the plaintiff, because under the statute the commencement of the ejectment proceeding was equivalent to a re-entry on the demised premises for condition broken, thus applying the doctrine alluded to that an entry by •a landlord for condition broken vests in him the title to growing crops.

The principle of that case seems to us controlling here. Indeed, the case at bar is much more favorable to the defendants on its facts than the one cited. In this case there was an actual re-entry by defendants while the crop was growing and unharvested; while in the New York case the reentry was constructive. Again, in this case the crop was growing on the premises at the time of the re-entry; while there, seed was planted after the constructive re-entry. The judgment was not unanimous in the New York ease, but the judges all agreed as to the general principle of law: that an actual re-entry by a landlord for condition broken vests him with title to all growing crops on the land; but they differed as to whether the commencement of an action of ejectment was equivalent to such re-entry,—a question that .does not arise in this ease.

3. The plaintiff relies for recovery upon the general doctrine that the owner of land out of possession is not entitled to annual crops grown and severed from the soil by an occupant: Page v. Fowler, 39 Cal. 412, 416 (2 Am. Rep. 462); Groome v. Almstead, 101 Cal. 425 (35 Pac. 1021); Martin v. Thompson, 62 Cal. 618; Jenkins v. McCoy, 50 Mo. 348; Adams v. Leip, 71 Mo. 597; Ray v. Gardner, 82 N. C. 454; Faulcon v. Johnston, 102 N. C. 264, 267 (11 Am. St. Rep. 737: 9 S. E. 394); Stockwell v. Phelps, 34 N. Y. 363, 364 (90 Am. Dec. 710); Phillips v. Keysaw, 7 Okl. 674 (56 Pac. 695); Kirtley v. Dykes, 10 Okl. 16 (62 Pac. 808); Churchill v. Ackerman, 22 Wash. 227 (60 Pac. 406); 8 Ballard, Real Prop. § 99. But we think this rule cannot apply to one who'secures and maintains possession by an injunction wrongfully issued after a landlord has lawfully re-entered for condition broken. The plaintiff never was in the exclusive possession of the premises, except by virtue of the injunction, either in» his capacity as the assignee of Huston or in any other capacity. At most, his possession was joint with that of the defendant and both were engaged in cultivating hops until the time of the injunction. It takes something more than such a holding to constitute an occupant within the meaning of the rule invoked by plaintiff. Because he was able by reason of the injunction to crop the land without license and against the protest of the defendants does not give him a legal title to the crop growing thereon at the time of his entry. His act was without right or authority, and at his peril, and he must suffer the consequences. If he thought himself wronged by the refusal of the defendants to recognize the assignment from Huston he should have resorted to an appropriate action to recover damages and not insisted on remaining in possession by means of an injunction.

4. It is claimed that the delivery to and acceptance by the defendants in October, 1904, of a part of the hops raised on the yard during that year is prima facie evidence of the relation of landlord and tenant, and sufficient to take the ease to the jury on that point. As a general rule the payment of rent by one in occupancy of premises is evidence of a tenancy, but not when paid under such circumstances as to rebut such an idea: Wood, Land. & Ten. § 4; Taylor, Land. & Ten. § 3. Ii clearly appears that defendants did not receive or accept the hops delivered to them by plaintiff with any intention of recognizing plaintiff as their tenant, but because they claimed title to all the hops grown in the yard. They had denied plaintiff’s right to possession from the beginning and were at the time*of the delivery litigating that question with him; and it would be inconsistent with their entire attitude throughout the proceedings, and all the circumstances of the case, to give to the mere fact of the receipt by them of a part of the hops the effect of evidence of a tenancy.

It follows that the judgment of the court below must be affirmed, and so ordered. Affirmed.