Friedlander v. Ryder
| Decision Date | 18 November 1890 |
| Citation | 47 N.W. 83,30 Neb. 783 |
| Parties | A. J. FRIEDLANDER, APPELLEE, v. J. J. RYDER, ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before WAKELEY, J.
AFFIRMED.
John P Breen, for appellant, cited: Van Ness v. Packard, 2 Pet. [U. S.], 137; Linahan v. Barr, 41 Conn. 471; Rogers v. Brokaw, 25 N.J.Eq. 496; Wall v. Hinds 4 Gray [Mass.], 271; Ombony v. Jones, 19 N.Y 234; Lanphere v. Lowe, 3 Neb. 135; Smith v. Whitney, 18 N.E. [Mass.], 229; Townsend v. Underhill, Pa. Com. Pl., 6 Pa. Co. Ct., 545; Wing v. Gray, 36 Vt. 261-8; Dubois v. Kelly, 10 Barb. [N. Y.], 508; Devlin, Deeds, sec. 770; Dietrichs v. R. Co., 13 Neb. 43; Wilgus v. Gettings, 21 Iowa 177; Wood, Land. & Ten., sec. 516; Mason v. Fenn, 13 Ill. 525; Waterman v. Clark, 58 Vt. 601; Mills v. Redick, 1 Neb. 437; Sec. Nat'l Bk. v. Merrill, 34 N.W. [Wis.], 514; Kerr v. Kingsbury, 39 Mich. 150.
A. C. Troup, contra, cited: Godfrey v. Walker, 42 Ga. 562; Farnam v. Hohman, 90 Ill. 312; Cook v. Creswell, 44 Md. 581; Taylor, Land. & Ten., secs. 551 (and note), 553; Wood, Land. & Ten., sec. 532, and authorities cited in note, page 892; Erickson v. Jones, 35 N.W. [Minn.], 267; Darrah v. Baird, 101 Pa. 265.
On July 8, 1885, one Malina Sanchezerey entered into an article of agreement for the purchase from the South Omaha Land Company of lot 4, in block 81, South Omaha. Subsequently she erected on the north half of the lot a two-story frame building, and on the 1st day of October, 1886, she leased the said north half to one George Boyle for the term of one year with the privilege of three years more, at his option, the stipulated rent being $ 50 per month. Boyle went into possession under the lease, and while in possession he erected a frame addition to the building which had been constructed by Mrs. Sanchezerey. The defendants claim that the lease contained a provision giving the tenant the right to remove all buildings he should construct upon the premises. The plaintiff denies that the lease contained such stipulation. Mrs. Sanchezerey assigned her contract of purchase to one Moses Horrowich, on December 7, 1886, who completed the payments to the South Omaha Land Company and received a deed for the lot. On the 30th day of April, 1887, Moses Horrowich and wife sold and conveyed by warranty deed the lot to Abraham J. Friedlander, the plaintiff, who is still the owner thereof. This deed was filed for record in the county clerk's office of Douglas county on April 23, 1887. Boyle on the 4th day of February, 1887, assigned the lease to one Thomas Higgins, and on the same day executed a bill of sale to Higgins for the frame addition erected by Boyle. Higgins went into possession of the premises under the lease, and remained in the occupancy thereof until the latter part of December, 1887. On the 12th day of January, 1888, Higgins, it is claimed, assigned the lease to Mary E. Hewitt, one of the defendants, and at the same time sold her his interest in the frame addition. The Hewitts took possession, and paid the rents for a time. Having quit paying rent, and being in default thereof, the lease was declared forfeited for that reason, and on March 19, 1888, the plaintiff A. J. Friedlander brought an action of forcible detainer against Harry Hewitt, the husband, before J. S. Morrison, a justice of the peace in and for Douglas county, to recover the possession of the premises. The justice found the complaint of the plaintiff to be true and rendered a judgment of restitution on the 4th day of April, 1888. On the same day a writ of restitution was issued, and two days later the Hewitts were dispossessed by an officer under the writ.
It also appears that some time in April, 1888, and after the judgment of restitution was entered, the defendants Ryder & Glick recovered a small judgment before a justice of the peace of Douglas county against Harry W. Hewitt and Mary E. Hewitt, and that an execution was issued thereon, which was levied upon the frame addition above referred to, as the property of the Hewitts. The officer holding the execution having advertised the addition for sale, and the Hewitts having threatened to remove the improvement, the plaintiff filed his bill in the district court to enjoin the sale and removal.
A trial was had to the court, with findings and judgment for the plaintiff. The defendants appeal.
It is claimed by the appellants that the lease from Mrs. Sanchezerey to Boyle contained a stipulation that the tenant could remove all buildings he should erect thereon during the continuation of the lease. The original lease was not produced on the trial, and without showing that it was not in existence, the defendants introduced a purported copy thereof, which contained such a clause. Whether such a provision was in the original lease when executed is not so clear. The lease, soon after its execution, was recorded in the county clerk's office of Douglas county. The record thereof was produced at the trial, and it contained no stipulation authorizing the tenant to erect and remove buildings, nor did it prohibit the erection and removal of improvements. The parties to the lease were not called to prove its terms. Theodore Elliott and M. H. Ish, being called as witnesses by the defendants, testified to having made the copy of the original lease introduced in evidence, after it had been assigned to Mrs. Hewitt. While it may be true that they made a correct copy of the paper then before them, they could not know that it contained the disputed clause at the time of its execution, as they never saw the instrument until many months after it was made. This testimony was not sufficient to overcome the record of the original made by the county clerk. The finding of the trial court, that the original lease contained no such a provision, was certainly justified by the evidence.
Under the lease, as established by the evidence, the tenant had a right, before the surrender of possession, to remove any improvements owned by him which are embraced under the head of tenant's fixtures, but the tenant had no authority to remove such improvements after the termination of the tenancy; in other words, the tenant could not re-enter to remove his fixtures after the surrender of possession to the landlord. In the case at bar the addition constructed by the tenant was not removed before the tenant was ousted under the writ of restitution. It is true, before the writ of restitution was served, the execution in favor of Ryder & Glick was levied upon the addition. But we fail to see how that could affect the rights of the plaintiff. These creditors, by the levy of their execution, obtained no greater rights in the premises than had their debtors, the Hewitts. If the Hewitts had no right to re-enter and remove the property after they had been dispossessed under the writ of restitution, then it would seem clear that their creditors had no such right.
It is claimed that...
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