Myerson v. Neff

5 Ind. 523 | Ind. | 1854

Hovey, J.

Neff sued Myerson before a justice of the peace, for occupying and detaining his store-rooms on lot number 50 in the town of Logansport. Myerson answered, denying the detainer, and setting up a tenancy from year to year ending on the 22d of May, and averring that he had not had legal notice to quit, and denying that any rent was due, or any damages suffered by the plaintiff. The justice rendered judgment in favor of Neff, and Myerson appealed to the Circuit Court.

At the November term, 1853, the cause was submitted to that Court for trial, and judgment rendered in favor of Neff for the possession of the rooms, and 92 dollars and 1 cent, damages, with costs, &c. Myerson appealed.

On the trial in the Circuit Court the appellant’s counsel moved the Court to certify the facts, under s. 341, p. 115, 2 R. S. 1852.

The following is the statement of the facts found by the Court, and the conclusions of law therefrom:

“ 1. That at the time of the commencement of this suit, and for many months previous, the defendant, Myerson, was in possession of the premises named in the complaint, belonging to the said plaintiff, Neff, and by his permission and agreement.

“2. That previous to his occupation under the present landlord, the plaintiff, the defendant had held from the plaintiff’s grantor for two or three years, not as tenant from year to year, but as tenant for a year, determinable on each occasion on the first of May.

“3. That the defendant’s tenancy under said first landlord continued until the 22d day of May (inclusive), 1852, when, under the conveyance from said first landlord to the plaintiff, the defendant attorned to the plaintiff and became tenant of the premises for one year thereafter a/nd no more, the same to expire on the 22d day of May (inclusive), 1853.

“4. That after said 22d day of May, 1853, the plaintiff entered on said premises described, and demanded the surrender of the same to him, the plaintiff, for the plaintiff’s own use, which the defendant wholly refused.

“ 5. That in opposition to the said plaintiff’s rights, the defendant has knowingly continued in occupation thereof to this time.

“ 6. That by reason of the same, the plaintiff hqs sustained damages to the amount of 91 dollars and 2 cents.

“7. And, therefore, as a legal consequence, that the plaintiff ought to have his possession and recover his aforesaid damages.”

Under these facts, the record presents no error.

The counsel for the appellant make but one point. They refer to s. 144, p. 441, R. S. 1843, and insist that they were entitled to three months’ notice to quit. The facts do not show a tenancy from year to year under that section. The Court found that by the terms of the attornment, Myerson was to have possession of the premises one year and no more, and that the tenancy was to expire on the 22d day of May, 1853. In such cases, no notice to quit is necessary. R. S. 1843, s. 155, p. 817.—2 R. S. 1852, s. 5, p. 242.

H. P. Biddle and B. W. Peters, for the appellant. D. D. Pratt and S. C. Taber, for the appellee.

Per Curiam.—The judgment is affirmed, with 5 per cent, damages and costs.