Dickinson Co. v. Fitterling

• Decision Date: 29 June 1897
• Citation: 71 N.W. 1030,69 Minn. 162
• Parties: DICKINSON CO. v FITTERLING.
• Court: Minnesota Supreme Court

69 Minn. 162

71 N.W. 1030

DICKINSON CO.vFITTERLING.

Supreme Court of Minnesota.

June 29, 1897.

(Syllabus by the Court.)

Where a third party is in possession of leased premises under the lessee, the law presumes that the lease has been assigned by the lessee to such third party, and, in a suit against him for rent, the burden is on him to explain the character of his possession; such burden is also on his assignee in insolvency. This rule is not changed by the fact that the lease contains a condition of forfeiture in case of such an assignment by the lessee.

Appeal from district court, Hennepin county; Seagrave Smith, Judge.

In the matter of the Dickinson Company, Elias Fitterling appeals from a judgment disallowing his claim against the estate. Reversed.

B. W. Smith and C. H. Rossman, for appellant.

Marcus P. Hayne and Welch, Hayne, Hubachek & Conlin, for respondent.

CANTY, J.

The appellant, Fitterling, is, and during all the times herein mentioned was, the owner of a certain tract of land fronting on a business street in Minneapolis. In June, 1890, he as one party, the firm of Dickinson & Cunnington as another party, and one Dunham as another party, entered into an agreement whereby Fitterling agreed to lease said tract to the other two parties for the term of 10 years from October 1,1890, and whereby said last two parties agreed to erect a building on said land, and to pay said Fitterling $125 a month each, payable monthly, and to pay one-half each of all taxes, assessments, and water rents levied on the premises. It was further agreed that the land and building should be mortgaged for the whole cost of the building, and that said last two parties should each pay 5 per cent. per year of the amount of said mortgage, and the interest on the unpaid portion of the same, during said 10 years, and at the end of said 10 years the building should revert with the land to Fitterling. This contract was by a further written instrument modified on October 24, 1890, and again on July 23, 1891, but these modifications are not here important. The building was erected, a loan made for the amount of the cost of the building to defray such cost, and a mortgage executed by Fitterling to secure the amount of the loan. The notes were signed by all parties as provided in the agreement. As soon as the building was completed, and about October 1, 1890, Dickinson & Cunnington took possession of their part of the building, and carried on a mercantile business in the same until about February, 1892, when they organized a corporation known as the “Dickinson Company,” which succeeded to the business, took possession of that part of the building, and continued to occupy the same until October 11, 1895, when, being insolvent, it made an assignment under the insolvency law for the benefit of its creditors. From October 1, 1890, until the Dickinson Company took possession, the firm of Dickinson & Cunnington paid all sums falling due under said contract as so modified, including the $125 per month to Fitterling, the taxes and assessments, the installments of the mortgage loan, and the interest on the balance of such loan remaining unpaid. The evidence tends to prove that after the Dickinson Company took possession it paid all of these charges until less than a year before it made the assignment. The amount of such charges for the time prior to the assignment which have not been paid is the sum of $5,672. Fitterling filed a claim for this amount with the assignee of the Dickinson...