198 Iowa 287 | Iowa | 1924
— -The record is somewhat abbreviated, and properly so. The purpose of the appeal is to determine whether
We do not understand appellant to claim that plaintiff is not entitled to the possession, but he claims that plaintiff’s remedy is by action of right, and not by forcible entry and detainer; and this for the reason that there was no lease, and the relation of landlord and tenant did not exist. It is said that, the proceeding of forcible entry and detainer being summary in its nature and in derogation of the common law, the statute conferring jurisdiction must be strictly pursued, and that the statute must be strictly construed. Benjamin v. Benjamin, 5 N. Y. 383; Roach v. Cosine, 9 Wend. (N. Y.) 227; 16 Ruling Case Law 1181, 1182.
The statute, Section 4208, Code, 1897, as amended by Chapter 271, Acts of the Fortieth General Assembly, provides a summary remedy for forcible entry or detention where a lessee holds over after the termination of or contrary to the terms of his lease, or for the nonpayment of rent when due. There are other provisions, but counsel practically concede that in this case the action may be maintained, if at all, under the first ground stated.
The petition set up the contract, notice of forfeiture thereof about two months before this suit was brought, and the notice to quit. The contract was made May 6, 1921, and the defendant went into possession of the premises thereunder, and was in possession at the time this action was brought. Appellant made but one of the deferred payments after the contract was made, and for this and other reasons the statutory notice of forfeiture was served upon her.
The contract provides, among other things, that plaintiff agrees to sell the property to defendant, and she agrees to buy. The deferred payments were to be made in installments of $20 on the first of each month. Defendant ivas to have possession June 1, 1921. If defendant failed to make the payments and pay the taxes, etc., plaintiff was to have any one of four options, one of which was that he might declare the contract null and void, and it might be forfeited, and the property should immediately revert to and revest in plaintiff, without any right of
It is true, as contended by appellant, that the relation of landlord and tenant is created by contract, either express or implied. However, no particular form of words is necessary to constitute an instrument a lease and create the relation, of landlord and tenant between parties. United States v. Shea, 152 U. S. 178 (38 L. Ed. 403); Heywood v. Fulmer, 158 Ind. 658 (32 N. E. 574); Hancock County v. Imperial Naval Stores Co., 93 Miss. 822 (17 L. R. A. [N. S.] 693, 696). The reservation or payment of rent is not essential to create the relation, though it is a usual incident. School District v. Batsche, 106 Mich. 330 (64 N. W. 196). As between vendor and vendee, it is held that the relation of a vendee to his vendor is that of a quasi tenant, though there is no express provision in the contract giving him the right to possession. Jones v. Temple, 87 Va. 210 (12 S. E. 404); Foley v. Wyeth, 2 Allen (Mass.) 131. In such a case, in determining the rights and liabilities of the parties, principles applicable to the relation of landlord and tenant have been applied. Thus the doctrine that a tenant is estopped to deny his landlord’s title has been applied to a vendee who enters under his contract to purchase. Lewis v. Hawkins, 23 Wall. (U. S.) 119 (23 L. Ed. 113). And this is so though, to give rise to the estoppel of a tenant to deny his landlord’s title, it must be shown that the relation of landlord and tenant in fact existed between the parties, as regards the land in question. 16 Ruling Case Law o'49. It is generally held that, in a contract for the sale of land under which the vendee is to be given possession, the parties may enter into a valid and effective stipulation that, on default in making agreed payments of purchase money, the vendee’s possession shall become that of a tenant, and be made to relate back
“To maintain forcible entry and detainer, he must show either an accomplished rescission or cancellation of his contract to sell, or a rescission by mutual agreement, and that defendant is wrongfully holding over after his right to possession has been so eliminated.” Fowler v. Dieleman, supra.
In Chambers v. Irish, 132 Iowa 319, 322, we said:
“There is presented by an action of forcible entry and detainer nothing more than the question as to the right of possession of the lands in controversy. The question of title * * * is not involved * * * As applied to a case such as the one in hand, the matters of inquiry may be specially stated thus: Does the*291 relation of landlord and tenant exist between the parties? And, if so, is the defendant holding over after the termination, or contrary to the terms, of his lease?”
If these matters are made to appear, the defendant must be ordered to vacate.
The contract in question does not specifically state that the relation of landlord and tenant shall exist after a termination of the contract; neither does it state in terms that the payments, or the one payment already made, are to be rent. We have seen that this is not necessary. It states that it is to be considered as payment for the use of the premises. If, in the instant case, the relation of landlord and tenant does not exist, what was the relation? The contract gave appellant the right to go into possession. She did so. The payments made were to be applied on the use of the premises. Appellee had the right of forfeiture and re-entry. Notice of forfeiture was given, in accordance with the statute. Appellant is holding over after the termination of the contract, and contrary to its terms. She had no right to the possession at the time this action was begun; We see no reason for compelling appellee to resort to an action of right, and thus delay proceedings and permit appellant to continue in possession perhaps for a considerable time without paying rent, and after her right to possession has fully terminated.
We think the action of the trial court was right. The judgment is — Affirmed.