Fernelius v. Fernelius

• Decision Date: 06 March 1931
• Docket Number: 5028
• Citation: 77 Utah 395,296 P. 244
• Court: Utah Supreme Court
• Parties: FERNELIUS v. FERNELIUS et ux

296 P. 244

77 Utah 395

FERNELIUS v. FERNELIUS et ux

No. 5028

Supreme Court of Utah

March 6, 1931

Appeal from District Court, Second District, Davis County; E. E Pratt, Judge.

Action by Charles A. Fernelius against Edward A. Fernelius and wife. From a judgment granting partial relief, plaintiff appeals.

REVERSED AND REMANDED, WITH DIRECTIONS.

David J. Wilson, of Ogden, and Willard Hanson and A. H. Hougaard both of Salt Lake City, for appellant.

P. C Evans, of Salt Lake City, for respondents.

ELIAS HANSEN, J. CHERRY, C. J., and STRAUP, FOLLAND, and EPHRAIM HANSON, JJ., concur.

OPINION

ELIAS HANSEN, J.

This action is founded upon a written contract for the lease of two tracts of land located in Davis County, Utah. By his complaint, plaintiff seeks to recover possession of the premises leased and to recover a judgment against the defendants for money alleged to be owing to the plaintiff under the terms of the lease. In the court below, the plaintiff was denied possession of the leased property, but was awarded a judgment against the defendants for the sum of $ 265.65 and costs. The plaintiff appeals from that part of the judgment whereby he is denied possession of the leased premises. No complaint is made of the money judgment by either of the parties.

The plaintiff is the father of the defendant Edward A. Fernelius. The defendants are husband and wife. On October 3, 1919, plaintiff and his wife, Mary Fernelius, entered into a written contract of lease with the defendants. So far as material to a review of the questions presented on this appeal, the lease provides as follows:

"Whereas the parties of the first part (plaintiff and his wife) are now the owners of and in possession of their farm in South Weber, consisting of two tracts of forty-eight (48) acres and twenty (20) acres, respectively, and the parties of the first part are desirous of letting their son and his married wife take care of said farm and also of the parties of the first part, it is mutually agreed as follows:

"Both parties are to live on said farm, and in the house that is now used as the home of the parties of the first part. * * *

"The parties of the second part agree to farm and till the whole of said farm in a good husbandlike manner, including orchard, fruit, grain, vegetables, live stock, and every thing else that may be raised or grown on said farm; and the parties of the first part are to give what assistance in farming and looking after said farm as they desire to furnish voluntarily, that is to say that they desire to work just as much as they desire, in as much as they are getting old. The parties of the first part upon the execution of this contract hereby turn over all live stock, cattle, horses, chickens, pigs, and all feed therefor that is at present on the farm, and all farm implements to the parties of the second part. And the parties of the first part are to forever maintain their residence on said farm; and the parties of the second part are to pay, or give, or turn over to the parties of the first part one-half of all the net income from said farm in whatever form the income may take, after deducting all running expenses of said farm, that is to say--the parties of the second part are to turn over to the parties of the first part one-half of all grain raised, vegetables fruit, and the like, or the money derived from marketing the same. It is further provided that the parties of the second part shall be entitled to one-half of the increase of all the live stock, pigs, chickens, and so forth, and that the parties of the second part never receive their share of one-half of the income without the consent of both parties upon the division. It is further provided that the parties of the second part shall do the marketing of all the products.

"It is further provided that in the event the parties of the second part or either of them ever work away from the farm or off of the farm, single handed or with the team, said parties shall turn to the parties of the first part one-half of all earnings so earned. Each family is to support itself upon its own income.

"In the event that either party is dissatisfied or becomes dissatisfied with this agreement, or desires to terminate this contract, they may do so by giving to the other parties ninety (90) days notice in writing, and before the expiration of the 90 days the parties of the second part shall surrender the entire possession to the parties of the first part, and an equitable settlement shall be made at that time of all the income and products of the farm at said time. It is understood that the parties of the first part shall always remain on said farm; that in the event of a misunderstanding the parties of the second part shall surrender possession of said farm;

"In the event that this contract continues until the death of both of the first parties, that is to say until the death of the survivor of the first parties, then the parties of the second part are to receive one half of the entire real estate above mentioned consisting of about 68 acres, and all of the machinery, cattle, horses, feed, live stock, and fruit on said farm at said time. The other one half of all of said real estate is to be divided equally among all the children of the parties of the first part, including this son, at the death of either survivor of the parties of the first part; the one-half falling to the parties of the second part shall include all buildings and the 20-acre land on the Bench and the land south of Bambrough Canal about 24 acres. The land north of Bambrough Canal about 24 acres shall be equally divided among all the first parties' children."

Upon issues joined, a trial was had to the court sitting without a jury. The court found in substance that the written contract of lease heretofore set out was entered into; that, prior to the execution of the lease, the defendants and the plaintiff and his wife, Mary Fernelius, occupied the leased premises under an oral agreement containing substantially the...