Folden v. State
| Decision Date | 08 December 1882 |
| Citation | 14 N.W. 412,13 Neb. 328 |
| Parties | CHARLES H. FOLDEN, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Fillmore county. Tried below before WEAVER, J.
AFFIRMED.
John P Maule, for plaintiff in error.
1. The fabricated writing was invalid as a lease within the meaning of the statute. Comp. Stat., sec. 1, chap. 73. Definition of lease. 1 Hilliard on Real Property, 261, sec. 2. Definition of rent. 2 Bouvier Dic., 437. There is no rent stipulated for here. The agreement is to quit claim an interest in the premises in consideration of a certain amount of wheat and corn. If the pretended lease is not valid in law as a lease it is not the subject of forgery. Clarke v. The State of Ohio, 8 Ohio St. 630. Wharton on Criminal Law, vol. 2 sec. 1444. John v. The State, 23 Wis. 505. Roode v. The State, 5 Neb. 174.
2. The verdict is not sustained by the evidence. The lease is dated March 1, 1881, at which time Folden was the owner of and in possession of the premises. Story purchased Folden's interest March 22, and there is no proof of an uttering of the lease after that date.
3. The record should show affirmatively that the defendant was in court when the verdict was brought in by the jury. Burley v. The State, 1 Neb. 391.
C. J. Dilworth, Attorney General, and W. H. Morris, District Attorney, for the State, cited Dodge v. The People, 4 Neb. 227.
The prisoner was indicted, tried, convicted and sentenced for the crime of forging a lease from one Joseph Story to himself. A demurrer was interposed to the indictment, on the ground that the instrument alleged to have been forged was not a lease. The demurrer was overruled, and the overruling of it is the first error complained of.
The instrument was clearly a lease, which is "properly a conveyance of any lands or tenements (usually in consideration of rent, or other annual recompense), made for life, for years, or at will." * * * "Though no formal words are requisite to a lease at common law, the usual words of operation in it are 'demise, grant, and to farm let, dimisi, concessi, et ad firmam tradidi.'" 1 Brown & Hadley's Com., Am. ed., 744.
Referring to the instrument in question, we find that it comes fully up to this requirement. By its express terms the nominal lessor, Joseph Story, "in consideration of the covenants of the said party of the second part," (the prisoner) does lease to him the premises described, "from the first day of March, 1881, to the first day of December, 1881." While it is true that the consideration mentioned does not fall within what is commonly understood by the term rent, that is not at all important. Rent, properly speaking, is not essential to a valid lease of land. 1 Washburn on Real Property, *292. As expressed in the instrument itself, the "consideration of the leasing of the premises as above set forth" was, that the prisoner should "quit claim his interest to said premises;" but as to what that interest was understood to be, we are unadvised. However, let the consideration from the lessee be what it may, the obligation imposed upon Story by the plain terms of the instrument, was that of lessor and nothing else.
But it is claimed further, that the evidence as to the uttering and publishing of the instrument was insufficient. "To utter and publish an instrument, is to declare or assert, directly or indirectly, by words or actions, that it is good." Whar. Am. Crim. Law, 339. All this the prisoner did of this instrument, as a brief reference to the evidence will show.
W. A Folden, a witness called by the prisoner, testified that he drew up the lease at his request. The prisoner then took it and went away. It is shown, too, by the testimony of several witnesses, including the prisoner himself, that he had the lease in his possession after it purported to be signed by Story, and claimed rights under it. He even testified that he saw Story sign it. And David S. Robinson, called by the state, swore that the prisoner came to him with the lease and wanted to commence a suit against William Lipincott for trespass on the land described in it. Upon Robinson expressing the opinion, as justice of the peace, we suppose, that the lease was not "complete" for want of a witness and acknowledgment, the prisoner asserted its sufficiency by saying "he had a counsel on...
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