163 S.W.2d 173 | Ark. | 1942
The form of action is unlawful detainer. Stroud alleged that as owner he rented certain land to Ray, the latter having taken possession in 1936. A similar contract for 1937 and 1938 was made at a later date. Rent for 1939 was not paid, although appellant held over. Requisite notice to vacate was given.
The answer admitted the 1936 contract, but claimed there were no improvements on the property. It was agreed appellant should erect buildings not to exceed $100 in cost, and that Ray should retain possession until there had been reimbursement. Retention of 1936 rents did not suffice; therefore, says appellant, a new agreement was made for 1937. At the close of the second year of occupancy, rents had been insufficient to repay appellant, the deficiency amounting to $32.50.
It was then alleged that when appellant rented the land he did so upon appellee's false representations of ownership. Taxes for 1932 were not paid, and in 1933 there was forfeiture to the state. Default was certified to the land commissioner at Little Rock. The state's title was confirmed in 1936. Act 119 of 1935.
In February, 1938, appellant received information that appellee did not own the land. He immediately asked Stroud to take such steps as might be necessary to preserve the property. There is the assertion by appellant that he told appellee the rental agreement could not be continued unless title should be cleared. In March, 1938, appellant purchased from the state.
It is contended the rental agreement was void for want of consideration, appellee's title having been lost. *585
The question is, May one who enters under a contract creating the relationship of landlord and tenant challenge such landlord's title?1
Appellant, in support of his argument that Stroud was a trespasser in his attempt to exercise dominion over the land, relies upon Prioleau v. Williams,
In Bettison v. Budd,
The holding in Pickett v. Ferguson,
These cases would control the instant appeal in Ray's favor but for testimony regarding transactions between appellant and appellee in 1938.3 *586
Stroud testified, as did Ray, that cost of the house was to be paid from rents. However, Stroud's version was that after crops had been gathered in 1938 a settlement was had. It included an allowance of $42 to compensate the sum Ray paid for the state deed. Stroud testified that ". . . after we settled I owed him $32.41. I told him I would get the money at once and pay him if he would move out; or, if he stayed, he could hold it out of the rents. He said that was all right, and he turned the place back to me."4
Stroud's testimony was that he told Ray he could not retain the place during 1939, and that Ray replied, "All right, I don't know what else to do. I'll just stay here, I guess." When appellee later demanded possession, appellant refused to move.
Appellant testified that when he learned appellee did not own the land, he had his wife write appellee, who called for the purpose of discussing the matter. Appellee remarked that if anyone paid the taxes, he [Stroud] would take the property away from him. After procuring the deed appellant saw appellee and told him what had been done. Appellee is quoted as having said, "What are you going to do about it?" Appellant replied, "Give me back my money and take it." Appellee said "All right." Appellant then testified: "But he hasn't given the money to me yet." At another place in appellant's testimony there is this statement: "I had already agreed to let him have the place back if he paid me, but he has never paid me a cent."
The evidence establishes a contract between appellant and appellee by which appellant recognized appellee as his landlord after having acquired the state's title. If, in fact, the relationship of landlord and tenant existed after Ray procured his deed, he could not question *587 Stroud's right to rent the land, nor challenge appellee's right to possession on expiration of the term. After surrendering possession, appellant may seek to assert his title. He may sue in ejectment, or resort to equity in an effort to cancel appellee's claims to the property as a cloud on his title.
Judgment affirmed.
