43 Ind. App. 91 | Ind. Ct. App. | 1909
Appellant sued appellee to obtain possession of real estate described in the complaint, after giving three months’ notice to appellee to yield possession at the end of the current year of his tenancy. In July, 1905, the appellant purchased the property from Charles Meyer and wife, and while appellee was in possession as tenant.
The complaint is in the ordinary form of action between landlord and tenant. The appellee filed his amended cross-complaint, averring that he is appellant’s tenant under a written lease made to him by appellant’s grantor, which entitled him to possession of the premises until the year 1912; that said lease contains certain errors and mistakes, which he asks to have corrected, and when such corrections are made he prays for a decree of specific performance of said lease and for an injunction restraining appellant from interfering with his right under said lease. Appellee also filed an answer, averring the same facts as set out in the cross-complaint, but in addition thereto set out various matters of estoppel against appellant. The court overruled a demurrer for want of facts to said amended cross-complaint to said answer and counterclaim, respectively, and, appellant refusing to plead further, a decree was rendered correcting and reforming the lease set up in the amended cross-complaint, directing specific performance of said lease by appellant, enjoining him from interfering with the rights of said appellee under said lease, and for costs.
The averments of defendant’s answer are substantially the same as in the cross-complaint, and if the cross-complaint is sufficient to withstand a demurrer, the judgment must be affirmed. It is the claim of appellant that the lease held by Landon described property in another part of Columbia City. The lease between Landon and Meyers provided:
“This lease shall end and terminate on February 24, 1905, unless, upon the option of said Landon, it shah be extended to February 24, 1912.”
Appellant contends that as appellee did not give his
In part it is averred, in substance, that for many years prior to the execution of said lease said Meyer had occupied the demised premises for a saloon and salesroom, and that said premises had become generally known as “Meyer’s saloon;” that said Meyer had built up a large and prosperous business in said premises, located upon the principal street in Columbia City, Indiana; that said Meyer at the date of said lease was the owner of the demised premises, and proposed to sell his stock of goods and merchandise to the defendant for an adequate consideration, and, as an inducement to said sale, proposed to execute to defendant a written lease of said premises running until February 24, 1905, at a monthly rental of $50, which lease should provide that the defendant should have the option to extend it to February 24,1912; that the defendant purchased from said Meyer his stock of goods and furniture; that, in consideration of said lease, defendant paid $3,000 more for the stock of goods purchased than otherwise he would have done; that in writing said lease, which said Meyer afterward duly executed, there was a mistake in describing the leased premises, which occurred through the mutual error, mistake and inadvertence of the parties to said lease; said erroneous description consisted in locating said premises upon lot seven in block six in the original plat of the town of Columbia, now called Columbia City, instead of upon lot six in the same block, said lot seven lying immediately east and adjoining said lot six; that defendant took actual possession
In Falley v. Giles, supra, it was held that, where a lease for two years provided that the lessee might hold the premises for the additional term of one, two or three years at his election upon the same terms it was held: That there could be but one election which could be for the further term of one, two or three years, but that, if the election was for one of the shorter periods, the election could not be so exercised as for another period; that the mere continuance in possession after sufficient notice of election and renewal for one year was not sufficient notice for a longer term.
In Spangler v. Rogers, supra, and Andrews v. Marshall Creamery Co., supra, it was held that merely holding over after the expiration of a term, under a lease which provided for a renewal upon the same terms, is not sufficient to show an affirmative election to renew the lease for an additional term and that notice must be given.
Andrews v. Marshall Creamery Co., supra, distinguishes between the privilege for extension and the privilege of renewal, and the opinion contains the following statement: “There seems'to be no doubt under the authorities that, where a lease provides that the tenant may have, at his option, an extension for a specified time after the expiration of the term agreed upon in the lease, or may occupy for an extended term including the term specified, the mere holding over after the expiration of the specified term will constitute an election to hold for the additional or extended term. ’ ’
In Taylor, Landlord and Tenant (7th ed.), p. 278, the author says: “Sometimes, instead of a covenant for a renewal, it is agreed that the tenant may have the privilege or option for a further term. In this case, if notice is stipulated for, it must be given; but, if not stipulated for, the tenant’s mere continuance in possession and paying rent, though with no express notice of his desire for the further
Upon the foregoing eases from various jurisdictions and from approved text-writers, and especially upon the authority of Terstegge v. First German, etc., Soc., supra, we hold that the facts set out in the cross-complaint fully justified the action of the trial court. Appellant bought with full knowledge of the appellee’s rights and subject to them. He is not a good-faith purchaser. Smith v. Schweigerer (1891), 129 Ind. 363.
Judgment affirmed.