21 Ind. App. 241 | Ind. Ct. App. | 1898
A demurrer to the appellant’s complaint for want of sufficient facts was sustained, and that ruling is presented for the consideration of this court. The complaint showed that on the 29th of January, 1896, the appellee was the owner in fee sim
“This deed is left in the hands of E. R. Price, to be delivered to the grantee therein named on the payment of four hundred dollars, on or before the 10th day of March, 1896. On the consummation of this contract the grantee is to have possession of the property specified in deed. A. Goslee, Máthias Ream. The mortgage given to secure the payment of
It was alleged, that said written memorandum and agreement was, by the appellant and appellee, put into an envelope with said deed, notes and mortgage, and placed in the hands of said Price, and that the deed and mortgage therein referred to were the same that were executed as aforesaid; that by the terms of said written memorandum and agreement, the appellee promised the appellant that upon the consummation of said agreement the latter should have the possession of said real estate.
It was next alleged, that said agreement was fully consummated on the 10th of March, 1896, when the appellant paid the appellee, and the latter received and accepted from the former, the sum of $400, and thereupon caused to be delivered to the appellant, and the appellant received and accepted from said Price said deed, and the appellant caused to be delivered to the appellee, who received and accepted from said Price, said notes and mortgage.
It was further alleged, that at the time the appellant purchased the real estate, and when said written memorandum and contract and the deed and mortgage were executed, one S. D. Sluyter was in possession of said premises as a tenant of the appellee under a written lease; that he occupied a brick store building thereon, under and by virtue of a lease or agreement with the appellee, and under said written lease; that the appellant had full knowledge of the existence of said tenancy, at and before said deed and mortgage were executed, but the exact terms of said lease or agreement and the nature and extent of said tenancy were to the appellant unknown at that
Usually, the possession of a tenant for years is deemed to be the possession of the grantee in the deed of conveyance, and the existence of the term is no breach of the covenant of warranty, the rent being’ apportioned at the time of the conveyance. In Lake v. Dean, 28 Beav. 607, the plaintiff agreed to sell the defendant an orchard, described in the written agreement as “now in the occupation of” a third person, and it was agreed that the purchaser should complete on a certain day, “when he shall have posses
A conveyance by a landlord is valid without at
It is alleged in the complaint that the appellant, the purchaser, had full knowledge of the existence of the tenancy, at and before the execution of the deed and mortgage, but that the exact terms of the lease were unknown to him at that time. It is not stated whether or not he knew the terms of the lease when he paid a part of the purchase-money and the sale was consummated, the tenant still being in possession. Nor does the complaint state what were the terms of the lease, or what was the nature or the extent of the tenancy; though it is stated that the tenant continued till a certain date in possession under and by virtue of the lease. No fraud or mistake is shown.
Having knowledge of the tenancy, the appellant was chargeable with knowledge of its extent. If the tenant had a right to continue in possession, he did