Allen v. Bartlett.

Decision Date08 July 1882
Citation20 W.Va. 46
PartiesAllen v. Bartlett.
CourtWest Virginia Supreme Court

1. The law is well settled in this State, that upon a demurrer to evidence the demurrant must be considered as allowing full credit to all the evidence of the demurree, and admitting all facts directly proved by it, or that a jury might fairly infer therefrom, and as waiving all the parol evidence on his part, which contradiets that offered by the demurree, or the credit of which is impeached, and all inferences from his own evidence, which do not necessarily flow from it. (p. 52.)

2. When once the relation of landlord and tenant is established by the act of the parties, it attaches to all, who may succeed to the possession through or under the tenant whether immediately or remotely, the succeeding tenant being as much bound by the acts and admissions of his predecessor, as if they were his own, (p. 53.)

8. Where the tenant holds over after the expiration of his lease, and the lessor receives rent accruing subsequently to the expiration of the term, or does any act, from which it may be inferred, that he intends to recognize him still as such tenant, he becomes thereby a tenant from year to year upon the conditions of the original lease, (p. 53.)

Writ of error and supersedeas to a judgment of the circuit court of the county of Harrison, rendered on the 7th day of January, 1880, in an action in said court then pending, wherein Mary E. P. Allen was plaintiff, and Wirt Bartlett was defendant, allowed upon the petition of said Allen.

Hon. A. B. Fleming, judge of the second judicial circuit, rendered the judgment complained of.

The facts of the case fully appear in the opinion of the Court:

C. Boggess for plaintiff in error:

1. The continuing over by Smith after the 1st of April, 1878, with the assent of Allen, made him a tenant from year to year upon the same terms as contained in the written lease under which he entered. Smith Land, and Ten. pp. 21, 22; Id. pp. 219-20-21; Chitty on Cont, p. 823-4; 1 Lorn. Dig. Tit. VIII. §§ 17, 18, 19, 20; Emeriek, v. Tavener, 9 Gratt. p., 236.

2. Tenancy from year to year is assignable and capable of supporting an under lease by yearly tenant, Smith Land, and Ten. p. 23.

3. A tenancy from year to year is determinable upon notice to quit; neither landlord nor tenant can at will determine it, Smith Land, and Ten. pp. 22, 221, 234; Chitty on Cont. p. 340; Code W. Va. p. 526, § 5.

4. After April, 1873, the tenancy became one from year to year and no notice to quit had been given. The defendant entered into the premises prior to the year beginning April 1st, 1874, as assignee of Smith and with the consent of the landlord. And his holding wras upon the same terms as in the written contract, and for the year following the one in which he entered under Smith. See the receipt of 10th of May, 1875, on p. 19, printed record, and which was prepared by the defendant, showing that he entered upon the premises under the lease to Smith. He sowed small grain on the land in. the fall of 1874, and continued to hold over after the first of April, 1875, and without having given notice to quit,

5. The court should have given judgment for the plaintiff upon the demurrer to the evidence.

A. I. II a stead for defendant in error:

This cause comes into this court on a demurrer by the plaintiff to the defendant's evidence. As an authority embracing the1 whole law of demurrer to evidence, so far as raised in this case, see case of Miller, use, (fc. v. Insurance Co., 8 W. Va. Rep. pp. 515, 533-4, 536-7, and authorities there cited.

1. Generally appellate court will not disturb judgment rendered by judge who presided and heard the demurree's witnesses, &c.

2. The denmurree is entitled to have his evidence "most benignly interpreted" by the court.

3. The demurree is entitled of all fair inferences.

The judgment of the circuit court was right and should be affirmed.

Snyder, Judge, announced the opinion of the Court:

Mary E. P. Allen, on the 19th day of April, 1876, brought an action of assumpsit in the circuit court of Harrison county against Wirt Bartlett to recover two hundred and fifty dollars for rent, damages and the use and occupation of a tract of two hundred and forty acres of land in said county known as the " Jack run land." The defendant entered the plea of non-assumpsit; and at the June term, 1879, the said action was submitted to a jury; and after all the evidence was heard the plaintiff demurred to the evidence of the defendant, in wdiieh demurrer the defendant joined; and thereupon the jury assessed the damages of the plaintiff at two hundred and fifty-eight dollars, with interest from June 1, 1879, until paid, subject to the opinion of the court upon the law arising upon said demurrer. All the evidence appears in this record; and that of the plaintiff is substantially as follows:

On the 11th day of May, 1872, the plaintiff by her agent, John J. Allen, entered into a wultten agreement of lease under seal with Mordecai Smith, by which the plaintiff leased to said Smith her " Jack run land " in Harrison county for the term of one year from April 1, 1872, to April 1, 1873, at the rental of two hundred dollars, of which fifty dollars was to be paid in permanent improvements on the land during the year and the balance in money at the expiration of the term; the said lease not to be transferred or assigned without the consent of the plaintiff, nor is said Smith to sub-let any portion of it. The said Smith to have the right after the expiration of the lease to enter and harvest the small grain sowed by him this fall: and he is to deliver in the mill at Clarksburg one-third of the small grain raised by him; but should the said Smith hold over by the consent of the plaintiff endorsed on the lease, then lie is not to account to plaintiff for said one-third of the small grain.

The plaintiff introduced as a witness John 11. Boggess, who testified, that he wras in 1873, the agent of the plaintiff to collect the rents due her under the aforesaid agreement and had the said agreement in his possession, and that he was not the agent of the plaintiff for any other purpose; that he collected the rents thereon from said Smith for the year ending April 1, 1873; that said Smith continued in the possession of said land after that time under said agreement and paid to witness the rent therefor until April 1, 1874; that some time in the winter of 1873-4 the said Smith came to witness and said, he wanted to go away, and asked leave for defendant to go into the possession of said land under the said lease, and that witness assented thereto, and defendant did so enter into the possession of said land and continued thus under said lease until the 1st day of April, 1875; that he had no authority to change the terms of said lease, and did not do so, and made no terms or agreement with the defendant in relation thereto; had no conversation with the defendant in relation to his giving up said land until after he had entered therein." He did not notify me or the plaintiff, so far as I know, or have been informed, that he did not intend to remain thereon after the 1st of April, 1875. How long he remained there after that time I do not know." That he, witness, did not enter upon said land as agent of the plaintiff after the 1st of April, 1875, and declare the holding over by defendant unlawful, and demand rent until after defendant had left the premises, and after the 1st of April, 1876. That the defendant paid him no rent for the said premises except the sum of two hundred dollars for the year from 1st of April, 1874, to 1st of April, 1875, which were paid to me as the agent of the plaintiff to receive the same.

And the defendant, to maintain the issue on his part, introduced himself as a witness and testified as follows: In the fall of the year 1873 I concluded that I wanted the Jack run land in controversy, having learned from Mordecai Smith, the then tenant, that he intended to leave, and got him to see Mr. John R. Boggess to let me have the land. I learned from said Smith afterwards, and before I entered, that he rented for me from said Boggess. And I afterward entered into said land under said Smith in February or March, 1874, and continued there until Smith's year ended, 1st of April, 1874, and continued there from that time until after the 1st of April, 1875. I had no conversation or agreement personally in reference to the said rent as previous with said Boggess until some time after I entered under the agreement said Smith had made, and after the 1st of April, 1874; I sowed grain on the premises in the fall of 1873 and also in the fall of 1874, and harvested both crops. I paid to said Boggess the rent for said land for the year that Smith rented it for me, from 1874 to 1875, as follows: One hundred dollars on the 10th of May, 1875, and one hundred and two dollars and eighty-four cents on the 20th of July, 1875, and took his receipts therefor, which are in the words and figures following:

"Received, May the 10th, 1875, of Wirt Bartlett, one hundred dollars on amount due on lease to Mordecai Smith, on the Jack run farm of Mary E. P. Allen, of two hundred and forty acres, the claim being for a part of the rent due for the year beginning April 1, 1874, and ending April 1, 1875.

" Mary E. P. Allen," By John R, Boggess, "Her Agent"

" July, 1875.

" Received of M. Smith, by the hand of Wirt Bartlett, one hundred and ten dollars and eighty-three cents in full for the rent of two hundred and forty acres of land on Jack run, leased to the said M. Smith for the year ending the 1st of April, 1875. "John R, Boggess."

The first one of said receipts I had written for said Boggess to sign, in pursuance of the arrangement made by Smith for me with the plaintiff's agent, as I understood from Smith before I entered, and from said Boggess after I entered; and I learned from Smith before entering, and from said...

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