Hall v. Henninger

• Decision Date: 12 May 1909
• Parties: HALL v. HENNINGER.
• Court: Iowa Supreme Court

145 Iowa 230

121 N.W. 6

HALL

v.HENNINGER.

Supreme Court of Iowa.

May 12, 1909.

Evans, C. J., and Weaver, J., dissenting.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

This is a suit to enjoin defendant's ward from interfering with the possession of certain real estate and the alleged right of plaintiff's tenant to occupy and use said premises under a lease. There was a hearing on motion to dissolve a preliminary injunction, which was overruled, and a trial on the merits in which a permanent injunction was granted. The defendant appeals. Reversed.O. S. Franklin and Mills & Perry, for appellant.

Clark & Byers, for appellee.

McCLAIN, J.

The real estate, possession of which is involved in this controversy, consists of a 40-acre tract of land belonging in 1907 to Mrs. Mary Racine, while another 40-acre tract adjoining the one above referred to on the south was owned by Mrs. Racine as life tenant with remainder over to the children of a second marriage. On her death in December of that year her children by the first marriage became under her will the owners in common of the north 40, and they are represented in this suit by the plaintiff, who, as administrator with the will annexed, on his appointment in January, 1908, became entitled to hold, manage, and rent said north 40 acres on behalf of the devisees and is practically their agent in charge of the land. For several years prior to the death of Mrs. Racine, her son Francis, who resided with her on the south 40-acre tract, was her tenant, at least as to the land in controversy, paying $275 per year rent for both tracts. The lease, as it would appear from the evidence, was originally written, but was orally continued from year to year. The evidence tends to show that prior to the death of his mother Francis Racine had an oral arrangement with her to keep the land for another year commencing March 1, 1908, provided he should desire to do so. There had also been negotiations between one Milbourne and Mary Racine with reference to a lease of the land in the event that Francis did not desire to retain it for another year, and the latter had for a short time in the fall of 1907 been absent in Colorado with a view of locating a homestead; but no homestead was in fact located, and defendant returned before his mother's death, whereupon Milbourne abandoned his intention of taking the farm. During the fall of 1907 Francis had fall plowed a part of the land with the prospect of having it for another year, and had an understanding with Milbourne that if the latter took the land Francis should be paid for his work. Soon after the death of his mother, Francis had a conversation with this plaintiff as to whether he should retain the north 40-acre tract, and expressed his desire to do so, but declined to agree to a rental of $4 per acre, offering to pay $3. From this time forward there was no change in the situation of the parties until after March 1st, when Francis went upon the land in controversy, broke the corn stalks on several acres thereof, and subsequently did some plowing. While thus engaged in plowing, one Huffman, who had on March 11th entered into a written contract of lease for the land with plaintiff, came to take possession of the land, but was refused permission to do so by Francis and was excluded from possession. On April 8, 1908, plaintiff filed his petition in equity in the district court against Francis Racine, alleging right of possession under the devisees of Mrs. Racine's will, and charging that defendant without any right whatever to do so entered upon the premises and commenced to work thereon and refused to permit Huffman, as plaintiff's tenant, to enter upon said premises, and further charged that unless the said defendant was restrained by writ he would continue without right to hold possession of said premises and to evict therefrom and from the possession thereof the plaintiff and his tenant, said Huffman, wherefore plaintiff prayed a temporary writ of injunction restraining said defendant from interfering with said premises and from preventing said Huffman from occupying and using said premises under his lease, and further that upon final hearing said writ be made permanent. Subsequently in proper proceedings the defendant was found to be an incapable person, and one George Henninger was appointed guardian of his property and was on application substituted as defendant in this suit. In the meantime, a temporary restraining order had been issued, which Henninger, as substituted defendant, moved to have dissolved on the ground that Francis Racine was in peaceable possession of the property at the time of the institution of plaintiff's suit and continued in such possession, and that a temporary injunction had been issued without hearing or notice, and further that plaintiff had a plain, speedy, and adequate remedy at law. On this motion to dissolve a hearing was had, as the result of which the court overruled defendant's motion to dissolve the temporary injunction. Thereafter the case came to final hearing on the same evidence which had been submitted for both parties on the motion to dissolve the temporary restraining order, and the court entered a decree making the temporary injunction permanent and perpetually and forever enjoining and restraining Francis Racine and his guardian from interfering with the possession of the premises and from in any manner preventing or interfering with Huffman's right as tenant under the plaintiff to occupy and use said premises. The appeal by defendant is from the ruling of the court on the preliminary hearing and from its decree on the final hearing.

1. The first question to be determined is as to the possession of the premises prior to and at the time of the institution of plaintiff's suit. Without setting out in full the evidence, it is sufficient to state our conclusion therefrom that Francis Racine, who will hereafter be designated as “defendant,” although now represented by his guardian, was in continuous possession of the premises from a time antedating his mother's death until the institution of the suit. He had plowed the land in the fall under an arrangement with his mother that he was to have the premises for another year save on a contingency which did not happen. No one had asserted any right of possession as against him prior to the 1st of March. Whatever may have been the right of plaintiff after the death of Mary Racine to recover possession of the premises from defendant as her tenant, the conversation between plaintiff and defendant indicated that it was in the contemplation of these parties that defendant might on some condition continue in possession as tenant, and no steps had been taken by plaintiff to recover possession from defendant. In pursuance of a claim by defendant that he desired to retain the land for another year as tenant, he went upon the premises in March under an assertion of continuous right of possession and exercised all the rights of possession which any one could exercise or attempt to exercise with reference to the land. He was thus in possession when his rights were first questioned by Huffman attempting to take possession under his lease with plaintiff, and by reason of defendant's insistence on his present right to occupy Huffman was prevented from taking or exercising any of the rights of possession. Plaintiff's petition in itself recognizes defendant's actual possession, for it asserts that if not restrained he will continue to hold possession and to evict therefrom the plaintiff and his tenant. It is plain therefore that there was neither allegation nor proof of any trespass by the defendant. His acts in March were done under claim of possession continuous from a time prior to his mother's death, when he was unquestionably a tenant, down to the time of suit. Counsel for defendant expressly avoided raising any issue of fact as to the possession by defendant as above recited. The court accepted this view of the case and made the issue to be determined turn on whether defendant had a contract with his mother whereby he was to farm the land for the year ending March 1, 1908. Evidently, however, this would not be controlling on the question of possession. Defendant might have been in actual and continuous possession without any express oral or written agreement. It did appear that he had paid rent for previous years, and that plaintiff asked him to pay for the year ending March 1, 1908.

2. On the death of his mother, defendant was a tenant holding over after the expiration of his lease. 1 McAdam, Landlord & Tenant, p. 37; 1 Tiffany, Real Property, §§ 32, 224. After that time defendant could have been dispossessed by plaintiff in an action for the recovery of real property (saving his right to emblements). See Code, § 4183, or by an action of forcible entry, under Code, § 4208; but in order to secure the summary remedy for forcible entry and detention three days' notice to quit would have been necessary. See Code, § 4217. After 30 days the defendant became a tenant at will, and to terminate such tenancy at will 30 days' notice in writing was necessary. Heiple v. Reinhart, 100 Iowa, 525, 69 N. W. 871;McClelland v. Wiggins, 109 Iowa, 673, 81 N. W. 156. The property was agricultural land, and therefore the tenancy could be terminated only on March 1st. See Code, § 2991. But by serving a proper notice any time prior to 30 days preceding March 1, 1908, defendant's tenancy could have been terminated on that date. Therefore plaintiff, with knowledge that defendant was in possession of the land as tenant holding over after his mother's death, had his election to allow him to remain, subject to the obligation to pay rent, or by proper steps to oust him from his possession. If plaintiff elected to allow him to remain for 30 days, he was then not entitled to either remedy until after service of 30 days' notice to quit, as provided by statute....