Flannagan v. Dickerson
| Decision Date | 07 October 1924 |
| Docket Number | 12605. |
| Citation | 229 P. 552,103 Okla. 206,1924 OK 858 |
| Parties | FLANNAGAN et al. v. DICKERSON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A lessee working on the leased premises on the first day of his term does not thereby obtain possession, where the premises are in the rightful possession of a prior tenant.
The rule of law as now settled by recently adjudicated cases is that any acts which are equivalent to an agreement on the part of the tenant to abandon, and on the part of the landlord to resume the possession of the demised premises amount to a "surrender by operation of law."
The rule may be safely said to be that a surrender is created by operation of law, when the parties to a lease do some act so inconsistent with the subsisting relation of landlord and tenant as to imply that they have both agreed to consider the surrender as made.
In an action for unlawful detainer, the landlord, although before bringing such action he has rented the premises to another is the proper party plaintiff.
Commissioners' Opinion, Division No. 3.
Appeal from District Court, McClain County; W. L. Eagleton, Judge.
Action by Robert R. Dickerson, a minor, by L. D. Dickerson, his next friend, against Streeter Flannagan and others. From a judgment for plaintiff, defendants appeal. Affirmed.
Ben Franklin, of Oklahoma City, and L. T. Cook, of Purcell, for plaintiffs in error.
C. G Moore, of Purcell, and Blanton, Osborn & Curtis, of Pauls Valley, for defendant in error.
This action was originally instituted in a justice of peace court in McClain county, Okl., by the appellee, plaintiff in the lower court, against the appellants, defendants in the lower court, for the possession of certain real estate. The cause was tried in the justice court to a jury and a verdict returned in favor of the plaintiff and against the defendants, whereupon the defendants appealed to the district court of McClain county, Okl., where same was tried on the 18th day of February, 1921, resulting in the return of a verdict in favor of the plaintiff and against said defendants for the recovery and possession of said premises.
Motion for a new trial was filed and overruled and judgment rendered by the court in conformity to the verdict of the jury whereupon the defendants appeal to this court. The facts as disclosed by the record show that L. D. Dickerson, as father and next friend of Robert R. Dickerson, a minor, rented the land in controversy, being the allotment of said minor, to Streeter Flannagan for the year of 1918, and in July of that year the said L. D. Dickerson entered into a written contract, wherein he rented same to one J. M. Waters for the year of 1919. About January 2, 1919, the said Waters attempted to take charge of the land preparatory to cultivating same, pursuant to his rental contract, but the said Flannagan interfered and refused to deliver up the possession to the said Waters, and contended that he had rerented the land for the year 1919, whereupon the said Waters filed an injunction suit in the district court of McClain county seeking to restrain the said Flannagan from interfering with said Waters taking possession of said land. A temporary restraining order was granted in the early part of January, 1919, restraining Flannagan from interfering with the possession of Waters, and on final hearing of said injunction proceedings on March 19, 1919, the same was dissolved, and the possession of the land was restored to the said Flannagan. At this stage of the proceedings Waters abandoned all further efforts to obtain possession of said land, and rented other lands from the said L. D. Dickerson for the year 1919; and thereafter this suit was instituted for possession by the appellee, Dickerson, resulting in judgment for plaintiff as aforesaid, and from which defendants appeal. The appellants set forth numerous assignments of error, but practically rely upon the proposition that Dickerson could not maintain the action because of the fact that he had rented the farm to Waters for the year of 1919, and contend that Waters had gone into possession by reason of the temporary restraining order granted, and that he, and not Dickerson, should have brought and maintained this action, but to this contention the court cannot assent.
The evidence discloses that Waters only had a scrambling possession, and the court very properly dissolved the temporary restraining order and refused to grant injunctive relief because of the fact that Waters was not in the lawful possession, evidently finding that Flannagan had retained and was in lawful possession at the time of the institution of the injunction proceedings. Appellants treat the action as though it was forcible entry and unlawful detainer, when in fact it is an action of unlawful and forcible detention. Had Waters been in the peaceable and lawful possession of the premises at the time of the institution of the injunction proceedings, he would...
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