Campbell v. Nixon

• Citation: 28 N.E. 107,2 Ind.App. 463
• Decision Date: 09 June 1891
• Docket Number: 130
• Parties: CAMPBELL v. NIXON
• Court: Court of Appeals of Indiana

28 N.E. 107

2 Ind.App. 463

CAMPBELL v. NIXON

No. 130

Court of Appeals of Indiana

June 9, 1891

Petition for a rehearing overruled October 3, 1891.

From the Marion Circuit Court.

J. B McFadden, for appellant.

R Denny and N. M. Taylor, for appellee.

OPINION

BLACK, J.

The court rendered a special finding, and we are required to determine whether it erred in its conclusions of law upon the facts stated. The action, commenced before a justice of the peace, was upon two joint and several promissory notes, dated October 2d, 1885, made by the defendant William R. Nixon and the appellee, John Nixon, payable to the order of Hannah C Stewart, in a bank in this State, and indorsed by the payee to the plaintiff, the appellant.

There was no service of process, and the defendant William R. Nixon did not appear to the action. The appellee appeared, and the justice rendered judgment against him, from which he appealed.

In the circuit court the appellee filed an answer, in several paragraphs, and there was a reply.

The rules of pleading before justices of the peace are applicable in the circuit court on appeals from justices, and all defences except the statute of limitations, set-off, matter in abatement, and the denial of the execution, or the assignment of a written instrument, may be given in evidence without plea. Sections 1460, 1502, R. S. 1881; Carter v. Edwards, 16 Ind. 238; Bernhamer v. Conard, 45 Ind. 151; Hill v. Sleeper, 58 Ind. 221; Phillips v. Cox, 61 Ind. 345.

The appellee was not confined to the defences pleaded by him, and his answer did not contain any matter which could not be made available without pleading it. No question was made as to the sufficiency of any of these pleadings, and they need not be noticed further.

The court found, in substance, that in October, 1885, said William R. Nixon rented of said payee, for the term of one year from the 1st of March, 1886, a certain farm in Shelby county, Indiana, by a lease signed by the lessor and the lessee, one of the provisions thereof being that the lessee would pay the lessor one hundred and twenty-five dollars in money for the rent of said farm for said term, sixty-five dollars to be paid September 1st, 1886, and sixty dollars to be paid December 15th, 1886, and that the lessee should execute his notes, with freehold security, to the lessor, for said sums respectively; that the notes in suit were executed in compliance with said provisions of the lease; that the lessee took possession of the farm on or before the first of March, 1886, and continued in possession thereof until after the maturity of the first of said notes, being the one falling due September 1st, 1886, and "until dispossessed as hereinafter found by the court."

It was further found that on the 8th of September, 1886, said first note being due and unpaid, the lessor, the said payee, caused to be served on said William R. Nixon a notice in writing to pay her the rent due and evidenced by said first note, within ten days from the time of service of said notice, and in case of default and failure to pay said rent so due, to deliver up to her the possession of said farm; that no part of the rent so due was paid within said ten days, and the possession of the farm was not delivered to said lessor, but the lessee continued in possession thereof "until dispossessed as hereinafter found;" that after the expiration of said ten days' notice said lessor commenced an action before one Thomas Beynon, a justice of the peace of said Shelby county, "for the possession of said farm, and for damages for the detention thereof; and in said suit such proceedings were had that" on the 4th day of October, 1886, said lessor recovered judgment against said lessee "for the possession of said farm, and for one hundred dollars damages for the detention thereof," with costs; that on the 5th of October, 1886, said justice issued a writ of restitution on said judgment, and delivered the same to a proper constable of said Shelby county, to execute; that on the 7th of October, 1886, "said constable made his return of said writ, in writing, to the effect that he had duly executed the same by removing the said William R. Nixon from said farm, and placing said Hannah C. Stewart in possession thereof, and that he had also collected the full amount of said judgment and returned the receipt of said Hannah C. Stewart in full therefor."

It was further found that at the time of the trial of said suit for the possession of said farm, said Hannah C. Stewart, then the holder of said notes given as aforesaid for the rent of the farm, delivered both of said notes to said justice, and they remained in his custody until some time in the autumn of 1887, and only a short time before this suit was instituted on said notes; that when the notes had been held by the justice nearly a year, said payee gave the appellant permission to request the justice to deliver them to the appellant; that upon request of the appellant said justice did deliver said notes to the appellant, who then took them to said payee, and she thereupon indorsed or assigned them to the appellant; that the payee received no consideration whatever, and was not promised any consideration, for the notes or for said assignment thereof, and that at the time of the assignment the appellant did not regard the notes as possessed of value.

It was also found that an erasure had been made across the back of each of the notes, but that the evidence failed to show when or by whom the erasures were made, or what had been erased.

The finding described the notes, and stated to what sums they amounted at the time of the finding. There were other matters in the finding which need not be recited for the purposes of our decision.

The court stated conclusions of law in favor of the appellee. The only portion of the conclusions to which it is necessary to make particular reference is as follows:

"The notes in suit in this action were merged in the judgment rendered by said Justice Beynon for the possession of the farm for the rent of which they were given, and for the damages for the detention of the said farm, and the satisfaction of said judgment by the said Hannah C. Stewart extinguished the debt as evidenced by said notes."

In a case where notice to quit for refusal or neglect to pay rent due is applicable, its effect is to determine the lease, unless the rent be paid at the expiration of the ten days following the service of the notice. Section 5211, R. S. 1881.

If the lease be so determined, and the landlord, in pursuance of such notice, be entitled to possession of the premises, he may have the "tenant, who shall unlawfully hold over," removed, on complaint before a justice of the county, "specifying the matters relied on to justify such removal and the damages claimed for detention," etc. Section 5225, R. S. 1881.

In such case, if the verdict, or finding, be for the plaintiff, judgment shall be rendered thereon, "that he have possession of said premises, and recover the damages assessed and his costs; and, if required by such plaintiff or agent, the justice shall issue a writ, directed to some constable of the county, commanding him to deliver said premises to said plaintiff, by removing the defendant and his goods therefrom, or otherwise, so that the plaintiff have complete possession thereof, and also to levy such damages and costs of the goods of said defendant as might be done by virtue of a writ of fieri facias." Section 5231, R. S. 1881.

On the trial, either before the justice, or on appeal to the circuit court, "the damages for the detention of the premises, shall be estimated up to the time of each trial." Section 5236, R. S. 1881.

If the rent be not paid at the expiration of the ten days' notice to quit for non-payment of rent due, the lease is determined, the relation of landlord and tenant is ended, and the holding over is an unlawful possession, to deprive the occupant of which the summary proceeding is provided by the statute.

The proceeding is possessory in its nature. The wrongful possession of the defendant is of the gist of the action. The proceeding sounds in tort. In the detention of the premises after such termination of the tenancy, the occupant is a tortfeasor. Hinsdale v. White, 6 Hill 507.

In Stuyvesant v. Davis, 9 Paige Ch. 427, it was held that a landlord, after he had re-entered for a forfeiture of the lease, might recover the rent which accrued previous to such forfeiture, in an action of debt or an action upon the covenant in the lease; that he could not, however, recover as landlord for any rent due after that time, but must be left to his remedy for mesne profits against the lessee or other person who had held the possession of the premises adversely to his claim.

It was held in Featherstonhaugh v. Bradshaw, 1 Wend. 134, that an action of assumpsit for use and occupation would not lie against a tenant holding over after the expiration of his term, where statutory proceedings were instituted to turn him out of possession, and judgment for possession was rendered; that a proceeding under the statute was in the nature of an action of ejectment, by which the relation of landlord and tenant is disavowed, and the defendant is treated as a trespasser; and that the plaintiff probably had his remedy by an action of trespass for the mesne profits.

Where a tenant had been put out of possession by summary proceedings under a statute providing that when the warrant for removal should issue the contract or agreement for the use of the premises, if any such existed, and the relation of landlord and tenant between the parties should be deemed to be cancelled and annulled, it was held that the rent which was due when the warrant issued...