Harmon v. Pohle
| Decision Date | 23 June 1910 |
| Docket Number | 7,232 |
| Citation | 92 N.E. 119,46 Ind.App. 369 |
| Parties | HARMON ET AL. v. POHLE |
| Court | Indiana Appellate Court |
Petition to modify judgment denied October 11, 1910.
From Dearborn Circuit Court; Frank B. Shutts, Special Judge.
Action by William Pohle against Leonard Harmon and others. From a judgment for plaintiff, defendant appeals.
Reversed.
Givan & Givan, Llewellyn E. Davis and L. B. Ewbank, for appellants.
Nicholas Cornet and McMullen & McMullens, for appellee.
The appellee's amended complaint is in two paragraphs demurrers to each of which were overruled. Answers of general denial were filed. Appellants moved that the issue be submitted to a jury. The motion was overruled, and the cause was tried without a jury. The finding, as well as the judgment, was for appellee, for possession of the real estate described and $ 482.54 damages. Appellants' motion for a new trial was overruled. The first paragraph of complaint sought to recover certain described real estate, to the immediate possession of which, it is alleged, appellee is entitled.
The sufficiency of this pleading primarily depends upon the construction of a lease made by appellee to appellants.
The lessor (appellee) by said instrument, leased to appellants 173 acres of land on the following terms:
"The lessees shall, and agree to, clear said timber land for cultivation, and plant, cultivate and tend not less than fifteen acres each year until all of said timber land is clear, and for so doing the lessees shall have the absolute and exclusive use of the land so cleared for two annual crops for each fifteen acres so cleared, and after the use of each fifteen acres so cleared for two successive annual crops, as aforesaid, such fifteen acres shall revert to the lessor, and be released and freed from this lease, and the lessees shall have no further right to or control over each or any fifteen acres when so released, that is to say, the lessees shall have the use of the land for two successive annual crops for clearing the same as aforesaid."
The appellee contends that the lease required appellants to clear fifteen acres of land each year; appellants contend that the cultivation of fifteen acres each year required that fifteen acres be cleared every second year. We think appellee's view is the better one. The purpose was to clear the land. The length of the term depended upon the time necessary to do the work. Had it been intended to clear fifteen acres every other year, it is probable that some definite expression of that fact would have been made. "Each year," as used, had relation to the clearing as well as to the cultivating of the land.
The lease provides as follows:
"And the lessees covenant to release and turn over to said lessor the land as cleared as herein provided in good condition, and failing fully and faithfully in letter and spirit to perform their covenants and agreements, as herein contained, it shall be lawful for said lessor to reenter said premises, and to have such premises again without let or hindrance, and this lease and everything therein contained on said lessor's behalf to be done and performed shall cease, determine and be utterly void."
It is well settled that there must be a reentry by the lessor who desires to avail himself of the breach of a condition subsequent (Van Horn v. Mercer [1902], 29 Ind.App. 277, 64 N.E. 531), and also that a demand for possession and a refusal to deliver it are equivalent to a reentry. Cory v. Cory (1882), 86 Ind. 567.
The objection is made to the complaint that a reentry is not shown by it. Performance of the condition of the lease by appellee on his part is averred, and that appellants have failed to clear fifteen acres of land each year, and have made it impossible to deliver said land as stipulated; that appellee demanded that they clear said land and deliver the possession of it to him prior to the bringing of this action but that appellants have failed and refused so to do and still...
To continue reading
Request your trial