Branagen v. Winders & Alm
| Citation | 187 N.W. 440,194 Iowa 461 |
| Decision Date | 04 April 1922 |
| Docket Number | 34527 |
| Parties | W. I. BRANAGAN, Appellee, v. WINDERS & ALM, Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 30, 1922.
Appeal from Palo Alto District Court.--JAMES DE LAND, Judge.
ACTION in forcible entry and detainer. Cause tried to the court upon an agreed statement of facts. Judgment entered giving plaintiff the possession of the real estate in controversy. Defendants appeal.
Affirmed.
Thomas O'Connor, for appellants.
Daniel Kelly, for appellee.
DE GRAFF, J.
This is an action in forcible entry and detainer and the petition is predicated on the second paragraph of Code Section 4208 which reads:
Plaintiff is the owner and lessor of certain premises in Emmetsburg Iowa and on February 7, 1913 leased said premises in writing to defendants' assignor "for the term of five years (with privilege of renting five additional years) commencing March 15, 1913," at $ 500 per year, payable in monthly installments of $ 41.65. Upon the expiration of the term, the defendants remained in possession of the premises and continued to pay to plaintiff the monthly rent of $ 41.65 to December 15, 1919, which rent was accepted by the plaintiff. Thereafter plaintiff refused to further accept rent and insisted on a new lease with an increase of rent, if defendants desired further possession of the premises. Plaintiff contends that the defendants were tenants at will holding over after the expiration of the term of the lease while it is the contention of the defendants that they were exercising the privilege granted to them under the lease of renting the premises for five additional years.
Plaintiff served the statutory thirty days notice to quit and upon defendants' refusal to surrender possession, the three days additional notice was given. Whereupon this action was instituted to acquire possession of the premises in controversy.
Were the defendants at the time of the service of notice tenants at will? Does the lease give to defendants a mere option to occupy the premises for an extended term or does the lease contain an agreement for an option to renew for a stated term? If the language of the lease is construed as an option for a renewal, then mere continuance in possession after the expiration of the term of the original lease is not in itself sufficient evidence of an election to renew. Marckres Bros. v. Perry Gas Works, 189 Iowa 1204, 179 N.W. 538.
If the lease gave defendants a mere option to occupy the premises for an extended term then the holding over after the expiration thereof will constitute an election to hold for the additional term. Fritch & Himes v. Reynolds, 189 Iowa 16, 176 N.W. 297.
In Spangler v. Rogers, 123 Iowa 724, 99 N.W. 580 the lease was executed in October 1897 and created in the defendant-lessee a term of one year with the option to the lessee "of renting the premises for four years after the termination of the lease on the same terms and conditions." Upon the expiration of the one year term the lessee continued until February 1900 to occupy the premises, when, after giving the plaintiff-landlord thirty days notice in writing of his intention to quit, he vacated and surrendered the premises to the landlord. The lessee did not in any way or by any affirmative act at the expiration of the one year term indicate...
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