Barnett v. Feary

• Court: Indiana Supreme Court
• Writing for the Court: Best, C.
• Citation: Barnett v. Feary, 101 Ind. 95 (Ind. 1885)
• Decision Date: 18 February 1885
• Docket Number: 12,070
• Parties: Barnett v. Feary

101 Ind. 95

Barnett v. Feary

No. 12,070

Supreme Court of Indiana

February 18, 1885

Petition for a Rehearing Overruled June 10, 1885.

From the Shelby Circuit Court.

E. P Ferris, W. W. Spencer, J. S. Ferris and A. Akers, for appellant.

E. K Adams and L. J. Hackney, for appellee.

OPINION

Best, C.

The appellee brought this action against the appellant to recover possession of the land in the complaint described, with damages for its detention and for waste alleged to have been committed thereon.

The complaint consisted of two paragraphs, to each of which a demurrer, for the want of facts, was overruled, and an answer in denial filed. Trial, verdict and judgment for the appellee. A motion for a new trial was overruled, and this ruling and the ruling upon the demurrer to the second paragraph of the complaint are urged as error.

This action was commenced on the 21st day of January, 1884, and the first paragraph of the complaint alleged that the plaintiff was the owner, was entitled to the possession of the premises in question, and had been since the 12th day of September, 1883; that since that time the defendant had unlawfully detained the premises, committed waste, etc., thereon.

The second paragraph alleged that the plaintiff, on the 12th day of September, 1882, by a written lease, a copy of which was filed, leased the premises to the defendant for one year, with the privilege of three; "that after the expiration of said year the defendant agreed with the plaintiff that he would take said farm for another year under said contract, and he continued in possession of said farm by virtue of that arrangement; that afterwards, to wit, about August 27th, 1883, he notified the plaintiff that he had rented another farm and would at once vacate her farm, whereupon by their agreement then made they mutually rescinded the aforesaid arrangement by which he was to remain on said farm for another year as her tenant;" that she thereupon rented said farm to two other persons, but that the defendant refuses to yield possession and unlawfully detains the same, etc.

The appellant insists that the averment in the second paragraph of the complaint, that "after the expiration of said year," etc., an arrangement was made to keep the farm a year longer, shows that he remained in possession under the lease for more than one year, and as such continued possession operated as an election to hold for the term of three years, his tenancy had not expired when this action was commenced, and therefore this paragraph was not sufficient.

If the averment in question was the only averment fixing the time when such arrangement was made, there would be much plausibility in the appellant's position, but it is not. There are other averments in the pleading that must be considered in connection with this one, and, when thus considered, the paragraph, fairly construed, avers that such arrangement occurred prior to the expiration of the first year. Such an arrangement operated as an election not to hold the farm any longer than a year, and such an election terminated the tenancy at the expiration of the year. The mere occupancy of the land at and after the expiration of the year can not be deemed an election to hold it for three years, in the face of an express notification of a different election, and after the opposite party had acted upon such notification by leasing the land to other parties.

If however, we are mistaken as to the construction of this pleading, and the same is insufficient, the error in overruling the demurrer can not reverse the judgment. The jury, in answer to an interrogatory, found that the parties in August, 1883, rescinded the contract made by them as to the possession of the land after the first year, and as the finding of this fact supports the first paragraph of the complaint, if the second is unlike it, we think it may be said that it...