Greene v. Wiese, 9451

• Decision Date: 16 March 1955
• Docket Number: No. 9451,9451
• Citation: 69 N.W.2d 325,75 S.D. 515
• Parties: Mabel G. GREENE, Plaintiff and Respondent, v. Otto WIESE, Defendant and Appellant, and Peter N. Swier and Dorothy Swier, Defendants.
• Court: South Dakota Supreme Court

Page 325

69 N.W.2d 325

75 S.D. 515

Mabel G. GREENE, Plaintiff and Respondent, v. Otto WIESE, Defendant and Appellant, and Peter N. Swier and Dorothy Swier, Defendants.

No. 9451.

Supreme Court of South Dakota.

March 16, 1955.

John Carl Mundt, Sioux Falls, for defendant and appellant.

Claude A. Hamilton, Thomas J. Barron, Sioux Falls, for plaintiff and respondent.

Lacey & Parliman, Sioux Falls, for defendants.

ROBERTS, Judge.

On September 29, 1944, the plaintiff entered into a written lease with the defendant Otto Wiese by the terms of which Wiese agreed to farm certain land belonging to the plaintiff in Minnehaha County for a term commencing March 1, 1945, and ending February 28, 1946. Defendant remained in possession after the expiration of the written lease and tilled the land from 1946 to 1953, inclusive. The defendants, Peter N. and Dorothy Swier, purchased the land described in the lease on August 4, 1953. Plaintiff on the following day gave written notice to the defendant Wiese to vacate the leased premises on or before February 28, 1954. Lessor then brought this action under the Uniform Declaratory Judgments Law, SDC 37.01, to secure a judgment declaring the rights of the parties in the leased premises.

The material portions of the trial court's findings are as follows:

'That on or about May 7, 1953, plaintiff informed the defendant Wiese that she was going to sell said farm and offered it to him, and several times from May 7, 1953 down to August 2, 1953, renewed the offer to sell to the defendant and repeatedly told him she was going to sell said farm; that said defendant did not accept said offer.

'That on or about the 5th day of August, 1953, the plaintiff notified the said defendant, Otto Wiese, not to do any fall plowing on said property. That despite said notice, and the notice of said sale, the defendant, Otto Wiese, has engaged in plowing said land and told the plaintiff that he would not surrender possession on March 1, 1954 or any time prior thereto, that he intended to hold said property during the entire farming year 1954.

'That the defendants, Peter N. Swier and Dorothy Swier, in order to complete the said contract for purchase above referred to, must sell the farm which they now own located in the State of Minnesota, that it is their intention and desire to move on to the property above described March 1, 1954 in order to farm same; that plaintiff will be unable to fulfill the terms of her contract with the defendants, Peter N. Swier and Dorothy Swier, if the defendant, Otto Wiese, fails and refuses to surrender possession of said property on or before March 1, 1954; that the plaintiff and the defendants, Peter N. Swier and Dorothy Swier, will suffer irreparable damage if the defendant, Otto Wiese, fails and refuses to surrender possession of said property on or before said date; that there is an actual dispute between the plaintiff and the defendant, Otto Wiese, as to the date of expiration of the latter's right to possession of said property.'

The trial court concluded that the lease had not been renewed or extended and that all rights of the defendant Wiese would cease and terminate on February 28, 1954. Judgment accordingly was entered. Defendant Wiese appealed.

Appellant contends that since the plaintiff had an adequate remedy in forcible entry and detainer and since the rights of the parties were dependent upon an issue of fact and not upon a construction of the written lease the present action did not come within the scope of the Declaratory Judgment Law. There existed between the parties a genuine and substantial controversy with respect to a renewal of the lease. In discussing such a situation, Professor Borchard in his work on Declaratory Judgments, 2d Ed., pp. 627 et seq., says: 'A lessor, * * * deeming himself entitled to refuse the lessee's demand for renewal on a stated ground but doubtful of his position * * * may institute an action for a declaration to establish the correctness of his legal position. * * * In most of these cases the opportunity of the lessor to know in advance whether the lessee is entitled to a renewal saves him and probably other parties the dangers losses, and embarrassment consequent upon mistaken action in leasing to another while the present lessee had a subsisting option and privilege of renewal. Future certainty and stability are thereby assured to all parties to the transaction.'

While there is some conflict in the decisions dealing with declaratory judgment actions as to whether or not a remedy in law or equity bars declaratory relief, the courts are in agreement that there is no justification ordinarily for the refusal of a declaratory judgment where such remedy is not adequate and available. 16 Am.Jur., Declaratory Judgments, ...