Coe v. Bennett

• Decision Date: 27 May 1924
• Citation: 226 P. 736,39 Idaho 176
• Parties: GEORGE COE and ETHEL COE, Respondents, v. ROY H. BENNETT and DAN KING, Appellants
• Court: Idaho Supreme Court

226 P. 736

39 Idaho 176

GEORGE COE and ETHEL COE, Respondents, v. ROY H. BENNETT and DAN KING, Appellants

Supreme Court of Idaho

May 27, 1924

PLEADING AND PRACTICE-MISJOINDER OF CAUSES OF ACTION-JUDGMENT ON PLEADINGS-UNLAWFUL DETAINER-CHARACTER OF THE ACTION-WHEN NOT MAINTAINABLE.

1. Where a complaint for unlawful detainer under C. S., sec 7322, also attempts to state a cause of action in equity to cancel a contract for the sale of the realty and for damages for its breach in a single count, a demurrer on the ground of misjoinder of causes should be sustained.

2. One who moves for judgment on the pleadings, for the purpose of the motion, thereby admits the truth of the material allegations of the adverse party and the untruth of his own allegations which have been denied, and such moving party is only entitled to a judgment where the pleadings do not put in issue any material issue and show upon their face that the party moving is entitled to recover without offering any proof.

3. An action for unlawful detainer under C. S., sec. 7322, is a summary proceeding and cannot be maintained unless the conventional relation of landlord and tenant exists between the parties, so that the defendant is estopped to deny the plaintiff's title. A party in possession under a contract of purchase of real estate does not after default in payment become a tenant at will subject to removal in an action of unlawful detainer, unless his pleading shows he has forfeited his contract of purchase and right of possession.

4. Where a contract for the sale of real estate contains a provision that upon default on the part of the purchaser and his failure to remove from the premises he may be treated as a tenant holding over unlawfully after the expiration of a lease, such condition does not become operative where the purchaser denies that he has forfeited his agreement to purchase and right of possession, and his pleading raises an issue upon which he is entitled to be heard.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. James G. Gwinn, Judge.

Action for unlawful detainer and to cancel sale agreement. Judgment for plaintiffs. Reversed and remanded, with instructions.

Reversed and remanded, with instructions. Appellants to recover costs.

O. A Johannesen, for Appellants.

In order to maintain the action of unlawful detainer, it is essential that the conventional relationship of landlord and tenant be shown, or, in other words, the action is limited to those cases in which the tenant is estopped to deny the landlord's title. (Frances v. West Virginia Oil Co., 174 Cal. 168, 162 P. 394; Opera House etc. Assn. v. Bert, 52 Cal. 471; Reay v. Cotter, 29 Cal. 168; Jones on Landlord and Tenant, sec. 563.)

Where one enters into possession of premises, under an agreement of purchase, payments to be made in instalments, the relation of landlord and tenant is not created even though there be a provision in the agreement that on failure to pay any instalment the vendor may treat the purchaser as a tenant and take lawful proceedings to summarily oust him, and such failure on the part of the purchaser to pay does not authorize summary proceedings to remove as for nonpayment of rent. (Young v. Columbia Investment etc. Co., 77 N.J.L. 410, 72 A. 35; Stockwell v. Washburn, 111 N.Y.S. 413; Bowling v. Bowling (Miss.), 47 So. 802; Francis v. West Virginia Oil Co., 174 Cal. 168, 162 P. 394; Powers v. Myers, 25 Okla. 165, 105 P. 674; Frances v. Holmes, 54 Tex. Civ. 608, 118 S.W. 881; Miner v. Dickey, 140 Mich. 518, 103 N.W. 855; Davis v. Taylor, 27 Ga.App. 621, 109 S.E. 535; 11 R. C. L. 1143; 19 Cyc. 1142.)

A forfeiture is a harsh remedy and will not be allowed except upon clear proof of the breach of the terms of the contract upon which such forfeiture is to be declared. (Harris v. Reed, 21 Idaho 365, 121 P. 780; King v. Seebeck, 20 Idaho 223, 118 P. 292.)

A party to a contract who has performed part of it according to its terms, and is prevented by the other party from further performance or from completing it, is excused from further performance. (59 Am. St. 283; 6 R. C. L. 1012; Page on Contracts, 2d ed., p. 156; Williston on Contracts, p. 1305; 9 Cyc. 635.)

W. A. Beakley, for Respondents.

This action was properly brought. (C. S., chap. 266, art. 4; C. S., sec. 7322, subd. 7.)

No answer or cross-complaint could legally be interposed. (Hunter v. Porter, 10 Idaho 72, 77 P. 434.)

No notice of forfeiture is required. (Earl Orchard Co. v. Fava, 138 Cal. 76, 70 P. 1073; C. S., sec. 7322.)

WILLIAM A. LEE, J. McCarthy, C. J., and Budge and Wm. E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--This appears to be a summary proceeding for unlawful detainer as defined by C. S., sec. 7322. Appellant Roy H. Bennett claims a right to the property described in the complaint as successor in interest of one Bauchman, who entered into a written agreement with respondents to purchase the premises in August, 1919, Thereafter Bauchman assigned his contract of purchase to Bennett, and appellant King, having leased the premises from Bennett, was in possession at the time of commencement of the action.

The complaint also alleges facts that indicate intent on the part of respondents to state a cause of action for a cancelation of this sale agreement, the prayer, in addition to asking for the summary removal of appellants from said premises, praying that the sale contract be declared null and void and canceled of record, for judgment against appellants for the amount due on the sale contract as damages, and rental for the premises to December 30, 1922, for $ 500 attorney's fees, and for costs. Appellants appeared and separately demurred to the complaint, one of the grounds being that several causes of action had been improperly joined in the complaint. The demurrers being overruled they separately answered, admitted the execution of the agreement to sell by respondents to Bauchman as alleged in the complaint, the assignment of the agreement to appellant Bennett, and the occupancy of King as tenant under Bennett. The complaint sets forth the sale agreement which contains a forfeiture clause that in case the purchaser or his successor in interest fails to make any payment on the purchase price when the same is due or to pay the taxes and water assessments before they become delinquent, or in case the purchaser defaults in any of the conditions of the sale agreement, he shall have no claim against the vendors in or to said real estate, but upon such default all of the purchaser's interest shall cease and determine and become forfeited, without any declaration of forfeiture or re-entry on the part of the vendors, and if the purchaser or other party claiming under them shall be in possession when such default is made, they will peacefully remove therefrom, or in default of so doing they may be treated as "tenants holding over unlawfully after the expiration of a lease and may be ousted and removed as such." The answer denies specifically all of the material allegations of the complaint and by way of confession and avoidance admits appellants did not pay the water assessments and taxes which fell due in December, 1921, and Bennett alleges that he was prevented from doing so by the wrongful action of respondents, who themselves made such payments prior to the assessments and taxes becoming delinquent and thereby prevented him from making such payments, and that they declared the sale contract canceled and thereafter refused to permit appellant to make any further payments or to receive or accept any further payments from him. Appellant Bennett also alleges that he has been at all times ready, willing and able to make such payments but has been prevented from so doing by said wrongful acts of respondents. In his affirmative answer, among other things, he alleges that Bauchman, his assignor, made the initial payment to respondents on the purchase price of $ 4,000, and that he on or about November 1, 1919, purchased Bauchman'sinterest and paid therefor $ 6,250 and that on December 30, 1920, he paid respondents on the principal $ 2,500 and $ 1,213.30 interest, had made valuable improvements on said premises, in all having paid for his interest therein the sum of $ 10,000, and for improvements thereon the additional sum of $ 2,000, and all taxes and water assessments levied thereon for the year 1920, and in his cross-complaint prays for alternative relief that if the court permits the cancelation and avoidance of the sale contract on the part of respondents it will require them to repay appellant all sums expended by him in the purchase of the premises, interest, taxes, water assessments and improvements, less the reasonable rental value of the premises during the years 1920 and 1921, and that he be allowed to retain possession of said premises until respondents repay to him the difference between the rental value of said premises and the amount he has expended thereon, and for equitable relief. Respondents moved to strike all that part of appellant's answer and cross-complaint relating to affirmative relief for the reason that their complaint and action was a summary proceeding for unlawful detainer and not subject to cross-complaint or counterclaim, which motion the court sustained. They further moved for judgment on the pleadings for the reason that the...