Hornung v. Herring

• Decision Date: 05 October 1905
• Docket Number: 13,926
• Citation: 104 N.W. 1071,74 Neb. 637
• Parties: GEORGE HORNUNG, APPELLEE, v. O. A. HERRING ET AL., APPELLANTS
• Court: Nebraska Supreme Court

104 N.W. 1071

74 Neb. 637

GEORGE HORNUNG, APPELLEE, v. O. A. HERRING ET AL., APPELLANTS

No. 13,926

Supreme Court of Nebraska

October 5, 1905

APPEAL from the district court for Lancaster county: EDWARD P HOLMES, JUDGE. Affirmed.

AFFIRMED.

George A. Adams and G. W. Berge, for appellants.

G. E Hager, contra.

JACKSON C. DUFFIE and ALBERT, CC., concur.

OPINION

JACKSON, C.

The plaintiff obtained a permanent injunction in the district court for Lancaster county, restraining the defendants from entering upon or trespassing on a tract of farm land in that county, and from entering or attempting to enter the residence of the plaintiff on the premises, and from interfering with the plaintiff in his occupation thereof. The defendants appeal.

In an amended petition plaintiff claimed possession and the right of possession under a written lease from Emma Simon, the owner of the land; that he entered into the possession thereof on the 13th day of February, 1904; that the land was inclosed by a barbed wire fence, and that on the land were several small buildings, including a dwelling-house where the plaintiff lived; that on the 1st day of March, 1904, the defendants forcibly and unlawfully entered upon the premises and commenced to farm the land; that the plaintiff forbade them to enter and ordered them to vacate and leave the premises, but the defendants violently and unlawfully assaulted the plaintiff, his agents and servants, and unlawfully and forcibly broke open the doors to the dwelling-house occupied by the plaintiff and placed some of their own goods in the house, and forcibly tried to put the plaintiff off of the premises and out of the possession of the same, and out of the dwelling-house; and threatened the plaintiff with bodily harm. That again, on the 2d day of March, the defendants came to the premises, and, after being forbidden by the plaintiff to enter thereon, the defendants forcibly assaulted the plaintiff, his agents and servants and broke open the gate and entered the premises; that they used vile, profane and indecent language, and threatened to do great bodily harm to the plaintiff, his agents and servants; and that they proposed to farm the land, and that they would come each day and take like possession of the premises. Plaintiff further alleged, unless the defendants were restrained by the court, they would continue to forcibly and unlawfully enter the premises and do great and irreparable injury to the plaintiff. Attached to the petition was a copy of a written lease of the premises from March 1, 1904, to March 1, 1905. The defendants answered, claiming that the defendant O. A. Herring was the owner of the premises by virtue of a written contract with Emma Simon, entered into on the 27th day of November, 1903, wherein Emma Simon agreed to sell and convey to Herring the land in controversy for the sum of $ 5,600, to be paid, $ 500 on March 1, 1904, and $ 500 on the 1st day of March of each year thereafter until the 1st day of March, 1909, when the balance remaining unpaid was to be paid in full; that by the terms of the contract defendant Herring was to have possession of the premises on March 1, 1904; and alleged a tender of the sum of $ 500 to meet the payment due on March 1, 1904; that the contract was filed and recorded in the office of the register of deeds of Lancaster county on the 16th day of January, 1904; that the said Emma Simon refused to accept the payment tendered by...