70 Neb. 632 | Neb. | 1903
The record in this case is of an action of forcible entry and detainer brought in the county court on the 4th day of December, 1902, and thence carried on appeal to the district court. At the close of the plaintiff’s evidence in the district court, the court directed a verdict for the defendant, and the plaintiff brings the record here for review.
It is a familiar rule that, in reviewing the action of a
“Said second party shall take good care of all buildings, fences, structures, trees of every kind, shrubbery, or other improvements upon said ■ premises and shall keep the ground about the same free from weeds. The said party of the second part further covenants with the said party of the first part that, at the expiration of the time menioned in this lease, peaceable possession of the said premises shall be given to the party of the first part in as good condition as they now are, the usual wear, inevitable accidents, and loss by fire excepted; and that upon the nonpayment of the whole or any portion of the said rent at the time when the same is above promised to be paid,, or a failure to perform any other agreement herein contained on his part to be done or performed, then the said party of the first part may, at his election, either distrain for said rent due, or declare this lease at an end and recover possession as if the same was held by forcible detainer, the said party of the second part hereby waiving any notice of such election or any demand for the possession of said premises.”
“And it is further covenanted and agreed between the parties aforesaid, that the said second party is to pay cash rent for the use of pasture land and hog yard, at the rate of $2.50 an acre, payable on the 1st day of November, and it is expressly understood and agreed that this lease*634 operates as a lien upon said crops for the payment of said cash rent as above described.”
It is also established that on the first or second day of November, 1902, the plaintiff demanded payment of the cash rent reserved in the lease, that the plaintiff failed to pay the same, and that the same was unpaid at the time the case was tried in the district court; that without the consent of the plaintiff, during the defendant’s occupancy under the lease, he had cut down some forty trees which had been planted on the premises and Avere growing there, and burned them for fuel; and that due notice to vacate the premises had been given the defendant more than three days before the commencement of this action. Section 1021 of the code, as it stood when this action was brought, was as follows:
“A tenant shall be deemed to be holding over his term Avhenever he has failed, neglected, or refused to pay the rent, or any part thereof, AVhen the same Avas due, and judgments, either before the justice or in the district court, under this chapter,"shall not be a bar to any after action brought by either party.”
That section was passed in 1875 as amendatory of section 1021 of the Revised Statutes, AAdiich was as folloAVs:
“Judgments, either before the justice or in the district court, under this chapter shall not be a> bar to any after action brought by either party.”
The amendatory act was passed under the old constitution. Section 19, article II, of AAdiich provided:
“No bill shall contain more than one subject, AAdiich shall be clearly expressed in its title; no 1uaat shall be revived or amended, unless the neAv act contain the entire act revived, and the sections amended; and the section or sections so amended shall be repealed.”
This provision, so far as it bears on the present case, is substantially the same as the constitutional provision now in force relating to the same subject. Ixf construing the latter, this court has frequently held that, where the title to a bill is to amend a particular section, no amendment is
This brings us to the question, whether, upon a breach of the covenant to pay cash rent at the stipulated time, and that against waste, the plaintiff had a right to terminate the lease and maintain an action of forcible entry and detainer to recover possession of the premises. There are authorities on both sides of this question. 18 Am. & Eng. Ency. Law (2d ed.), 442 and notes. But an examination of those authorities will disclose that they are based on laws which differ materially from our own, consequently they are of little aid in the present inquiry. In Stevenson v. Brodahl, 49 Neb. 703, this court held that a provision in the lease, that the lessee should give a chattel mortgage on the crop each year to secure a note given for the rent, though supplemented with another stipulation that the nonperformance of any of the terms of the lease would, at the election of the lessor, end the lease, did not entitle the lessor to maintain the action of forcible entry and detainer. But in that case the provision in the lease in regard to the chattel mortgage was that it was to be given each year to secure the note due for that year. The breach relied on for maintaining the action was that no mortgage had been made on the crop of 1891, though de
Proceedings in forcible entry and detainer lie in all cases against tenants holding over their terms. Sec. 1020 of the code. On the breach of the covenants as to the payment of rent and against waste, the term in this instance terminated upon the election of the lessor to terminate it. Thereafter the tenant was holding over his term, and the action would lie. The plaintiff therefore made a prima facie case, and the direction of a verdict against him was error.
It is recommended that the judgment of the district
For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings according to law.
Reversed.