Brenner v. Heiler

• Decision Date: 11 May 1910
• Docket Number: No. 7,254.,7,254.
• Parties: BRENNER v. HEILER.
• Court: Indiana Appellate Court

46 Ind.App. 335

91 N.E. 744

BRENNER

v.HEILER.

No. 7,254.

Appellate Court of Indiana, Division No. 2.

May 11, 1910.

Appeal from Circuit Court, Dubois County; V. R. Green, Special Judge.

Action by Lena Heiler against Robert Brenner. From a judgment for plaintiff, defendant appeals. Affirmed.

R. W. Armstrong, for appellant. Fisher & Schwartz, for appellee.

COMSTOCK, J.

The complaint in this case charges that appellee, plaintiff below, was the owner of certain real estate in Dubois county, Ind., describing it; that she purchased said land from Carl J. Grabber in April, 1908, and he delivered over to her the possession thereof subject to the right of the defendant therein as tenant from year to year; that said defendant has been and is now occupying said land as a tenant from year to year, his tenancy beginning on the 1st day of March, 1908, and the same will expire on the 1st day of March, 1909; that on June 30, 1908, she served a written notice upon appellant to deliver up possession of said land at the expiration of the current year of said tenancy, and also in said notice informed appellant that she had purchased said land, and notified him that she intended to break up and plow the vacant places in said land during the fall of 1908, and sow the same in wheat; that in violation of his rights under said lease and the said written notice said appellant, on the 13th day of August, 1908, began to plow up a part of said land with a view of putting same in wheat; that he has already, up to August 14, 1908, plowed up, now at this time, about one acre of said land, and if not prevented by an order of this court he will continue to usurp the rights of plaintiff in her said land; that appellant wrongfully, and without leave, license, or consent of plaintiff, entered upon said land with teams, horses, and plows, and did on the 13th and 14th days of August, 1908, plow up the earth and ground on her real estate to the extent of one acre, with a view of putting the same in wheat, and continuing the same in wheat, and continuing his tenancy thereon beyond March, 1909; that appellant is threatening to, and will if not enjoined and restrained by this court, continue to plow up the earth and ground of her said land and put in a crop of wheat thereon, and thereby continue his tenancy and lease on said land beyond the term of its expiration, to wit, March 1, 1909, to the irreparable injury and great damage of this plaintiff; that appellant is wrongfully claiming, without any right, license, or leave from this plaintiff that he holds a lease upon said land for a term of three more years, and that his said claim to a three-year lease therein is false, and wholly without right or permission from her or from any of the former owners of said land; that appellant is not entitled to remain on said land as a tenant after March 1, 1909; that plaintiff is entitled to the possession thereon on March 1, 1909, by virtue of the written notice aforesaid, which is filed with the complaint and made a part thereof, marked “Exhibit A”; that the defendant is entitled to remain upon said land until the 1st day of March, 1909, but no longer, and if he be permitted to remain thereon after said date, and is not restrainedand enjoined by this court, said continued occupancy by defendant will be to the irreparable injury and great damage of plaintiff; that there is no legal and adequate remedy at law for plaintiff herein. Therefore she asks that appellant be restrained and enjoined, etc., and that the plaintiff have damage in the sum of $50, etc. A demurrer for want of facts was overruled to complaint, and appellant filed an affidavit and motion for change of venue from judge, and affidavit and motion for...