Ehrhart v. Spencer

• Decision Date: 07 November 1953
• Docket Number: No. 39063,39063
• Citation: Ehrhart v. Spencer, 175 Kan. 227, 263 P.2d 246 (Kan. 1953)
• Parties: EHRHART et al. v. SPENCER et ux.
• Court: Kansas Supreme Court

Page 246

263 P.2d 246

175 Kan. 227

EHRHART et al. v.SPENCER et ux.

No. 39063.

Supreme Court of Kansas.

Nov. 7, 1953.

Syllabus by the Court.

1.A lease of land for any term, taking effect in praesenti, does not violate the rule against perpetuities.

2.The record in an action in ejectment to recover the possession of real estate examined, and held: (1) The lease under which defendants claimed the right to possession (a) was not void for the reason it created a perpetuity and (b) had not expired or become inoperative under and by virtue of its own terms at the time of the commencement of the action; (2)the trial court did not commit reversible error (a) in rejecting certain evidence referred to and discussed in the opinion, (b) in the instructions given, (c) in overruling plaintiffs' motion for new trial, or (d) in rendering judgment in favor of defendants and against plaintiffs on the general verdict of the jury.

Edward T. Riling, Lawrence, on the briefs, for appellants.

George K. Melvin, Lawrence, on the briefs, for appellees.

PARKER, Justice.

This was an action in ejectment in which a jury returned a general verdict for defendants and judgment was rendered accordingly.The plaintiffs appeal.

Beulah Ehrhart is a niece and Ralph Miller and Ralph Spencer are nephews of John W. Spencer, a resident of Douglas county, who died in a Topeka hospital on December 22, 1951.Maxine Spencer is the wife of Ralph Spencer.

The plaintiffs, Beulah Ehrhart and Ralph Miller, commenced this action against the defendants, Ralph Spencer and Maxine Spencer, on April 21, 1952, by filing a petition wherein they alleged: First, that on April 13, 1949, John W. Spencer was the owner and in possession of 400 acres of real estate (describing it) located in Douglas county; second, that on that date such decedent leased the real estate to defendants by written agreement the terms and conditions of which appear in a copy of the lease attached to and made a part of the pleading; that on April 11, 1950, John W. Spencer conveyed the real estate to plaintiffs by warranty deed, reserving a life estate therein; third, that the written agreement between the decedent and defendants was null and void for the reason it created a perpetuity, and if not, then such lease, by its own terms and by reason of facts thereinafter set forth, had become of no further force and effect; fourth, that defendants had breached and failed to fulfill each and every part of the lease and agreement 'by failing to replace fruit trees; by failing to repair fence; by allowing more than two ponies to be pastured on the hay meadow; by allowing manure to pile up in and around the barn and by allowing the house and buildings to run down; and further damaging the land by pasturing stock during wet and soggy weather all of which have been under the sole control of the defendants since the making of the above mentioned lease and agreements.'

Without further detail it may be said that remaining paragraphs of the petition contained allegations, of no particular importance to the issues, to the effect that plaintiffs had fully performed their obligations under the lease; that they had given defendants notice to vacate the premises; that defendants had refused to vacate the property and were unlawfully retaining its possession; and that plaintiffs were entitled to judgment for the immediate possession of the real estate and damages in an amount stated.

Pertinent portions of the lease in question read:

'To have and hold the same for the term of one year, unto the said party of the second part from the 13th day of April, 1948, to the 13th day of April, 1949.

'And the said party of the second part, in consideration of leasing the premises, as above set forth, covenants and agrees with the said party of the first part to pay to the said party of the first part, his heirs or assigns, as rent for the same, the sum of five hundred ($500.00) dollars for the said term, on December 1, 1948.

'The second party agrees that he will not at any time pasture more than two ponies on the hay meadow, and then only when ground is sufficiently dry that no damage will be caused.

'Second party agrees that he will haul and spread all manure on the farm land and will not permit it to pile up or bank up around the barns.

'First party agrees to pay all taxes and keep premises insured to his own satisfaction.

'Possession given immediately upon execution of this agreement.

'First party agrees that second party may use any and all dead wood any where on the premises for fire wood, and if he needs more wood for fire wood he may cut such wood as may be agreed upon by the parties hereto.

'First party agrees that if second party pays the rent on time as herein specified and performs the other agreements on his part to be performed and takes care of the place in a proper manner as herein agreed that second party shall have the option of renewing this lease from year to year at the same rental by giving first party a written notice of his election to renew the same at least 60 days prior to the expiration of the term herein agreed upon.

'It is further agreed that when fences are repaired or constructed that second party will perform labor and first party will furnish the wire, posts and staples.'

With the petition in form as related defendants filed a motion which, so far as grounds sustained are concerned, asked that plaintiffs be required to strike all allegations of he third paragraph of that pleading relating to 'failing to replace fruit trees, failing to repair fence and allowing the house and buildings to run down and damage to the land by pasturing stock during wet and soggy weather' for the reason such allegations did not state any violation of the terms of the lease; and that plaintiffs be required to separate, state, and number their cause of action for damages, if any, and plead facts itemizing and showing them to be entitled to such damages, if any.

After the sustaining of the foregoing portions of the defendants' motion plaintiffs acquiesced in the rulings with respect thereto, and we pause to point out make no complaint thereof on appellate review, by filing an amended petition.This pleading made no attempt to comply with that portion of the trial court's ruling requiring them to itemize and plead facts disclosing their right to damages, if any.Otherwise it contained allegations substantially the same as those set forth in the original petition except that in lieu of the allegations originally pleaded in the third paragraph of that pleading it contained the following averments:

'Plaintiffs further allege and show to the Court that said lease, a copy of which is attached hereto and made a part hereof, provides as follows: Second party(Ralph W. Spencer) agrees that he will not at any time pasture more than two ponies on the hay meadow, and then only when ground is sufficiently dry that no damage will be caused.

'Plaintiffs further allege and show to the Court that the defendants in this action have violated and are now violating said provision in said lease and have permitted large numbers of cattle, hogs and horses to run upon and pasture the hay meadow which is the principal part of the real estate hereinbefore described.

'Plaintiffs further allege and show to the Court that said lease hereinbefore referred to provides as follows: Second party(Ralph W. Spencer) agrees that he will haul and spread all manure on the farm and will not permit it to pile up or bank up around the barns.

'Plaintiffs allege and show to the Court that the defendants in this action have violated and are now violating said provision of said lease in that they have allowed manure to pile up and bank up around the barns on the premises described above and have failed, neglected and refused to haul and spread all manure on the farm, as said lease provides.

'Plaintiffs further allege and show to the Court that by reason of the facts hereinbefore set out, showing that the defendants have violated the terms and conditions of said lease, they are not entitled to the option of renewing said lease from year to year, as said lease provides 'if they do not violate any of the terms and conditions of said lease, they may renew said option.''

Defendants' response to the amended petition was a combined demurrer and answer.It read:

'Come now the defendants above named and demur specially to that part of plaintiffs' petition commencing on the bottom of page 1 thereof, and reading as follows: 'Plaintiffs further allege and show to the court that the said written agreement between John W. Spencer and Ralph Spencer and Maxine Spencer is null and void for the reason that it creates a perpetuity,' for the reason that no cause of action is stated thereby as said petition together with the exhibits thereto shows on its face that the rule against perpetuities has not been abridged.

'Further answering, defendants deny each and every allegation in plaintiffs' amended petition contained, except that defendants admit all of the allegations of the first paragraph of said amended petition.'

Following the filing of the pleading last above described the trial court found that the written lease agreement attached to the petition did not violate the rule against perpetuities and sustained the demurrer to the portion of the petition demurred to by defendants.

Thereafter plaintiffs requested and obtained leave of the court to file an amendment to their amended petition wherein they expanded certain allegations thereof and...