Cary v. Kautzman, 7260

• Decision Date: 25 March 1952
• Docket Number: No. 7260,7260
• Citation: 53 N.W.2d 99,78 N.D. 875
• Parties: CARY v. KAUTZMAN et ux.
• Court: North Dakota Supreme Court

Page 99

53 N.W.2d 99

78 N.D. 875

CARY v. KAUTZMAN et ux.

No. 7260.

Supreme Court of North Dakota.

March 25, 1952.

Rehearing Denied May 15, 1952.

Syllabus by the Court.

1. Where a landlord brings an action in forcible detainer against his tenants for possession of the leased premises and the tenants deny their landlord's title they waive service of notice to quit and any irregularity in service of such notice.

2. Where on appeal to the Supreme Court there is no settled statement of the case and no stipulation of facts, the appeal will be deemed to have been taken on the judgment roll, and the findings of fact of the trial court must be taken to be true; the only question for determination on appeal is whether the trial court's conclusions of law are warranted by the findings of fact.

3. Where a written agreement is denominated a 'lease' but contains all of the characteristics of a purchase contract and the facts tend to show that the parties acted in accordance therewith, it will be held to be a purchase contract.

4. The record including the findings of fact is examined and for reasons stated in the opinion it is held that, the reasonable inference to be drawn therefrom is that the written agreement was in fact a purchase contract, and that the trial court's conclusion of law to the contrary was error.

C. J. Schauss, Mandan, John F. Lord, Mandan, for plaintiff and respondent.

Murray & Murray, Bismark, for defendants and appellants.

SATHRE, Judge.

This is an action in forcible detainer brought by C. R. Cary plaintiff and against Anton R. Kautzman and Elizabeth Kautzman, his wife, defendants.

The complaint alleges that the plaintiff is the record owner of the premises involved, that he leased the said premises to the defendants under a written lease whereby the defendants agreed to pay rent at the rate of $27.27 per month and an additional sum to cover taxes and special assessments; that the defendants have failed and refused to make the payments provided by the lease, and that they are in default of such payments in the sum of $199 and that the plaintiff has not waived such payments. Plaintiff demands judgment for said sum of $199 and for possession of the premises covered by the lease.

The defendants answered alleging that they are the equitable owners of the premises described in the complaint; that they derive their title through the plaintiff; that on or about the 26th day of August 1948, the plaintiff entered into an agreement in writing with the defendants wherein and whereby the plaintiff leased said premises to the defendants for the period of ninety-six (96) months and ending on the 1st day of September 1956; that said written lease contains an option to purchase wherein and whereby plaintiff agreed to sell the property to the defendants for the sum of twenty-five hundred dollars ($2,500) and that the defendants would have until the 1st day of October, 1956 to exercise said option; that on the date said lease was executed these defendants exercised the option to purchase and paid the plaintiff five hundred dollars ($500) as part of said purchase price; that in said option agreement it is provided that the defendants shall have until October, 1956, in which to pay the balance of the purchase price, to-wit: two thousand dollars ($2,000) with interest thereon at the rate of seven per cent; that in addition to the payment of said five hundred dollars ($500) as a part of the purchase price, these defendants also paid an additional payment of approximately three hundred dollars ($300) on the purchase price, making a total payment on the purchase price of eight hundred dollars ($800); and that no part of said purchase price is now due.

The answer put in issue the title to the premises involved and the Justice of Peace certified the case to the District Court of Morton County.

The District Court held that the defendants had not exercised the option to purchase, that they were in default in the payment of rentals, and ordered judgment in favor of the plaintiff for $199 past due rentals and costs, and for immediate possession of the premises. From this judgment the defendants appeal.

The record contains no settled statement of the case, no transcript of the evidence taken at the trial and no stipulation of facts. The appeal must therefore be deemed to have been taken upon the judgment roll.

The defendants assign several specifications of error, but only two need to be considered here, viz.;

1. That the court erred in holding that the defendants were properly served with notice to quit.

2. In not granting defendants' motion for judgment on the findings of fact.

We shall consider the assignments in the above order.

It is the contention of the defendants that the plaintiff failed to prove jurisdictional facts sufficient to sustain forcible entry and detainer in that there was no legal service of the notice to quit as required by section 33-0602, NDRC 1943, and that therefore the justice of peace was without jurisdiction to certify the case to the district court. Section 33-0602 provides that in forcible detainer actions the notice to quit may be served and returned as a summons is served and returned. Upon this point the district court found that on September 19, 1950, the plaintiff served upon the defendant Anton Kautzman a notice to quit, introduced in evidence as plaintiff's exhibit 2 and that on September 26, Clayton Kitchen served upon the defendant Anton Kautzman an identical notice introduced in evidence as plaintiff's exhibit 1. Clayton Kitchen made an endorsement upon the original notice to quit to the effect that he had served the same upon the defendant Kautzman. This was the only proof of service filed in justice court. Upon the trial in district court the plaintiff was permitted to file with the Clerk of Court an affidavit of service by Clayton Kitchen setting forth that he served such notice to quit upon Anton Kautzman at the place of residence of Anton Kautzman and Elizabeth Kautzman, but said affidavit of service was not introduced in evidence. This affidavit by Clayton Kitchen shows that the notice to quit was served as provided by law by a person legally qualified to make the service. The district court further found 'that the defendants by their answer denied the relation of landlord and tenant existed between the defendants and the plaintiff and the defendants claimed ownership of property described in the complaint. That by said disclaimer of the relationship of landlord and tenant the defendants waived notice to quit the premises'.

'The necessity of a notice to quit is removed by the tenant's disclaimer of the relation of landlord and tenant, or by his repudiation of the title of his landlord'. 52 C.J.S., Landlord and Tenant, Sec. 736, page 596. Hollar v. Saline Products, 25 Cal.App.2d 542, 78 P.2d 237.

'It is a general rule that a right of a tenant to notice to quit is waived by the disclaimer of his landlord's title.' 32 Am.Jur. Sec. 1007, page 845.

In the case of McLain v. Nurnberg, 16 N.D. 144, 112 N.W. 243, it was held that a justice of the peace acquires jurisdiction to try and determine an action for forcible detainer under section 8406, Rev.Codes 1905, 33-0601, NDRC 1943, by the giving of a notice to quit although such notice is not filed with the justice when the summons is issued.

The defendants having put in issue the title to the premises involved they cannot now challenge the validity of the service of the notice to quit. We hold therefore that the justice of the peace had jurisdiction and that the findings of the trial court on this point were correct.

The second assignment for our consideration is whether the district court erred in not granting defendants' motion for judgment on the findings of fact.

The findings so far as material here are as follows:

1.

That this is an action for the recovery of possession of the real property described in the complaint.

2.

That the plaintiff is the owner of the property described in the complaint.

3.

That on the 26th day of August, 1948, the plaintiff leased the said real property to the defendants by written lease (with option to purchase) which lease is set out in full as follows:

Lease (With Option to Purchase)

'This indenture, Made in duplicate this 26th day of August, A. D. 1948, between C. R. Cary, of Mandan, North Dakota, party of the first part, hereinafter designated the Lessor, and Anton R. Kautzman and Elizabeth G. Kautzman, his wife of Mandan, North Dakota, parties of the second part, hereinafter designated the Lessees, Witnesseth:

'That the lessor, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the Lessees, and Lessee's executors and administrators, has demised and leased to the Lessees the following described premises, situate in the County of Morton and State of North Dakota, to-wit: Lot 1, Block 89, First Northern Pacific Addition to City of Mandan, State of North Dakota, together with the privileges and appurtenances, for and during the term of 96 months, commencing on the 1st day of September, 1948, and ending on the 1st day of September, 1956, the said property is to be used by the Lessees.

'If, at any time, the Lessor should advance the Lessees, money for the purpose of making repairs, then the Lessees agree to repay such advances, with interest at the rate of seven per cent per annum from the date such advances are made, at the date of the termination of this lease.

'The Lessees covenant and agree that they will pay to the Lessor for the use of the property above mentioned and described, rent as follows:

'1. The sum of Twenty-Seven and 27/100--($27.27) on the 1st day of each month during the life of this lease, commencing on the 1st day of October, 1948.

'2. Together with and at the time of the payment of the rentals payable under the preceding section, a sum equivalent to one-twelfth of the estimated annual taxes on...