49 Ind. 516 | Ind. | 1875
The appellee sued the appellant, to recover for the use and occupation of a house for two years, demanding judgment for four hundred dollars.
Answer of general denial; trial by the court, finding for the plaintiff, and, over a motion for a new trial, judgment on the finding for two hundred dollars.
The only question in the case is as to the sufficiency of the evidence, under the law, to sustain the finding and judgment. ~We set out the whole evidence. The plaintiff testified:
“ I am the owner of the buildings on lot number 227, in the city of Jeffersonville; the houses are built on leased ground; the ground belongs to Mr. Elliott, and I hold the lease and own the houses; there are three tenements on the lot, all of which belong to me; I owned them on the 27th
Emmons Waldron testified on behalf of plaintiff: “I live in the house described by Robinson Alexander; have lived in it two months; I pay fifteen dollars per month rent; don’t know what it was worth in 1869 and 1870; I did not live in Jeffersonville then.”
This was all the evidence of the plaintiff, and the defendant gave this evidence:
William Nance, the defendant: “ I bought the house on lot number 227 at constable’s sale; I occupied it about six weeks, not exceeding two months; I was put in possession of it by the constable; after I had been in it about six weeks or two months, I traded it to James W. Bell; Bell occupied it several months, and sold it to Whitlaw, and afterward Whitlaw sold it to Switzer; when each one sold it, he gave up the posses
Simon L. John^pn, testified this: “ I reside in Jefferson-ville, and know the value of the rent of the house on lot number 227 ; it was worth, at the time spoken of by Alexander, for the twenty months he says he was out of the possession, about ten dollars per month; that would be a liberal rent for it.”
The finding and judgment cannot be sustained on the evi- • dence. A suit for use and occupation can only be sustained where the relation of landlord and tenant exists expressly or ■ by implication. The evidence in this case shows no such state or relation between the parties. Newby v. Vestal, 6 Ind. 412; Hanes v. Worthington, 14 Ind. 320; Washb. Real Prop., vol. 1, 512, 513; Wiggin v. Wiggin, 6 N. H. 298; Ackerman v. Lyman, 20 Wis. 478.
The judgment is reversed, at the costs of the appellee, with, instructions to sustain the motion for a new trial.