Hitshew v. Rosson

• Decision Date: 06 May 1930
• Docket Number: 1617
• Citation: 41 Wyo. 509,287 P. 316
• Parties: HITSHEW, ET AL. v. ROSSON [*]
• Court: Wyoming Supreme Court

287 P. 316

41 Wyo. 509

HITSHEW, ET AL. v. ROSSON ^[*]

No. 1617

Supreme Court of Wyoming

May 6, 1930

APPEAL from District Court, Niobrara County; BRYANT S. CROMER Judge.

Action in forcible entry and unlawful detainer by W. S. Hitshew individually, and as administrator with the will annexed of the estate of U. G. Hitshew, deceased, against E. Rosson. From a judgment of the District Court for plaintiff, after trial de novo on appeal from justice's court, defendant appeals.

Affirmed.

For the defendant and appellant there was a brief by Edwin L. Brown of Lusk, Wyoming.

The petition, sounds in ejectment, and was filed in justice court, as an action of forcible entry and detainer. Defendant in joining issue thereon was justified in denying the administrator's title, and the judgment rendered in justice court was void. Defendant approved the existence of a continuing lease, conditioned upon the payment of specified rental. The continued occupancy by defendant and acceptance of rent by the plaintiffs corroborate the defendant. A tenancy at sufferance cannot continue year after year without consent of the owner. It ripens into some other form of leasehold. An agreement between landlord and tenant for a tenant's lease, conditioned upon the payment of specified rental in a written instrument, is valid. Thaw, et al. v. Gaffney, (W. Va.) 83 S.E. 983, 3 A. L. R. 495.

For the plaintiffs and respondents, there was a brief by Harold I. Bacheller, of Casper, Wyoming.

The petition stated a good cause of action in forcible entry and detainer. The evidence showed that defendant after the expiration of his original lease, held as a tenant by sufferance; that 3 days notice to quit was given by plaintiffs as required by Sec. 4621 C. S. It was unnecessary to allege defendant's occupancy as being wrongful and unlawful. The justice court had jurisdiction. The appellant was seeking to justify under a lease and at the same time seems to question his landlord's title. A tenant cannot question his landlord's title. The alleged lease could not be specifically enforced. Thaw v. Gaffney, 83 S.E. 983, 3 A. L. R. 495. Defendant testified that he had lost the lease and could not remember all of its provisions; that it provided for increased rental upon its expiration, which if true, rendered it invalid as a right of renewal. 16 R. C. L. 866, 887. The evidence was overwhelmingly in plaintiff's favor. This court will not disturb a judgment rendered on conflicting evidence.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

Plaintiffs and respondents, under the forcible entry and detainer provisions of the justice code of this state, brought an action against the defendant and appellant to obtain possession of certain premises situated in the town of Lusk, Wyoming. The justice of the peace rendered a judgment in favor of the plaintiffs and the defendant thereupon appealed the case to the District Court of Niobrara County, where the cause was retried and judgment again entered for plaintiffs. From that judgment this appeal has been prosecuted.

Briefly summarized, plaintiffs' petition described the property, the possession of which was claimed and which was asserted to be owned by plaintiffs, and then set out the facts relied upon to recover the premises, viz: That the plaintiff, individually and during the lifetime of U. G. Hitshew, about the year 1922, by written agreement, leased said premises to defendant for a stipulated rental and for a term of two years; that defendant occupied said premises and paid the required rental thereafter; that the term of the written lease has expired and that plaintiffs have not entered into any other lease either written or oral with defendant since the expiration of the written contract of demise above mentioned; that sundry notices to quit were served upon defendant by plaintiffs, one of them being given on November 2, 1928, by W. S. Hitshew, both as an individual and as administrator with the will annexed of the estate of U. G. Hitshew, deceased, said notice requiring the delivery of possession to plaintiffs by 12 o'clock noon of November 6, 1928; that defendant has failed to leave and deliver up possession of the premises and has continued in open and hostile possession thereof to the exclusion of the plaintiffs without any legal right.

Defendant filed an answer in substance admitting the receipt of the several notices to quit, his possession of the property by virtue of the written lease and his refusal to vacate. The answer also alleged that this lease was lost or destroyed; that it provided that defendant could remain in possession so long as he paid the rent and permitted the rental to be advanced, as and in case rents were advanced; that the rental was advanced and paid by the defendant to December 1, 1928. All other allegations of the petition were denied.

A reply was filed by plaintiffs denying the new matter contained in the answer.

Preliminary to trial in the District Court, defendant's general demurrer that plaintiffs' petition failed to state a cause of action which had been filed in the justice court, was argued and overruled. It is now claimed that this was error, the contention being that the pleading contained no allegation that the defendant was wrongfully and unlawfully holding possession. No authorities are cited in support of this criticism as applicable to a petition such as appears in this record and we have been unable to find any. Section 6625, Compiled Statutes of Wyoming 1920, which indicates what should be incorporated in a complaint filed in forcible entry and detainer proceedings, directs the facts to be set out upon which reliance is predicated to recover the property in dispute. The unlawful detention of the premises must undoubtedly appear from the facts thus required to be detailed (26 C. J. 850, Sec. 107 and cases cited), and we think the petition attacked reasonably meets this requirement. This conclusion is the more readily reached when it is recalled that a petition of this character must be liberally construed. Church v. Blakesley, 39 Wyo. 434, 273 P. 541. The language concerning whose omission complaint is made by appellant would be but a legal conclusion, at most.

It is also argued for reversal of the judgment that the justice was without jurisdiction to try the action and hence the District Court had none on appeal. This is said because plaintiffs were alleged in the petition to be the owners of the property involved and this averment was denied by the answer, thus raising an issue of title, which the justice might not try but was required to certify to the District Court pursuant to Section 6484, Compiled Statutes of Wyoming 1920. But this issue was quite immaterial in view of the fact that both in the pleadings of the parties and in their proofs, it appears undisputed that defendant derived any rights he might have to the premises in controversy through and only through either the written lease from the plaintiff W. S. Hitshew and the testator U. G. Hitshew before the latter's death--as the defendant contends, or the holding over after the expiration of the term of that instrument--as plaintiffs insist; in short, that the relation of landlord and tenant existed between the parties. And so in either event the familiar general rule that a tenant in possession of demised premises is estopped to deny the title of his landlord (16 R. C. L. 649, Sec. 137) was, we think, applicable here and precluded any investigation of the title to this property.

The undisputed testimony of the defendant himself is, that the written lease was signed by W. S. Hitshew, the individual plaintiff here, U. G. Hitshew, his brother, upon whose estate the former was subsequently appointed administrator, and the defendant. The uncontradicted proof also is, that defendant took possession of the premises in question in August, 1922; that U. G. Hitshew died October 1, 1926; that letters of administration with the will annexed upon the estate of his brother were issued to W. S. Hitshew July 9, 1927; that during the lifetime of his brother, W. S. Hitshew represented him with reference to these premises and collected the rent therefor; and that the defendant, since the inception of the lease, both before and after his brother's death, paid the rent to W. S. Hitshew regularly and apparently without question up to the date of the commencement of this action. Under this state of facts the general rule concerning a tenant's estoppel, mentioned in the preceding paragraph, was not only operative against the defendant as regards the plaintiff W. S. Hitshew individually, but also as regards the latter as administrator of his brother's estate. That this is so is, we think, well established by reason of the provisions of our statutory law and the authorities presently to be cited.

Defining the rights, powers and duties of executors and administrators in this state, Section 6829, Comp. Stat. of Wyo. 1920, enacts that:

"The executor or administrator is entitled to the possession of all the real and personal estate of the decedent, and to receive the rents and profits of the real estate until the estate is settled, or until delivery over by order of the court to the heirs or devisees."

See also Bamforth v. Ihmsen, 28 Wyo. 282, 295, 204 P. 345, 205 P. 1004. Sec. 6834, W. C. S. 1920, concerning the same subject, provides, among other things, that:

"The executor or administrator must take into his possession all the estate of the decedent, real and personal, and collect all debts due to the decedent or to the estate."

While Section 6835, W. C. S. 1920, in its entirety, provides that:

"Actions for the recovery of any property, real or personal, or for the possession...