Kelley v. Kelley

• Decision Date: 16 October 1919
• Docket Number: 32779
• Parties: JOHN T. KELLEY, Administrator, Appellant, v. M. N. KELLEY et al., Appellees
• Court: Iowa Supreme Court

174 N.W. 342

187 Iowa 349

JOHN T. KELLEY, Administrator, Appellant, v. M. N. KELLEY et al., Appellees

No. 32779

Supreme Court of Iowa, Des Moines

October 16, 1919

Appeal from Pocahontas District Court.--JAMES DELAND, Judge.

ACTION in forcible entry and detainer. Opinion states the facts. Judgment for the defendant in the court below. Plaintiff appeals.--Reversed and remanded.

Reversed and remanded.

Ralston & Shaw and Burnquist & Joyce, for appellant.

Healy & Faville and T. F. Lynch, for appellees.

GAYNOR J. LADD, C. J., WEAVER and STEVENS, JJ., concur.

OPINION

GAYNOR, J.

This was an action in forcible entry and detainer, brought by the administrator of the estate of Rhoda Kelley, deceased, and involves the possession of 320 acres of land in Pocahontas County. The controversy is between the plaintiff and the defendant C. J. Kelley, both sons of Rhoda Kelley. The other defendant, also a son, disclaims any interest in the controversy, and is not involved in this suit. Rhoda Kelley the mother of the parties, owned the land in controversy. She died on the 9th day of October, 1917, and this plaintiff is the duly appointed administrator of her estate. Some time in the summer of 1917, she executed a power of attorney to this plaintiff, to look after her business, rent her land, collect the rent, and care for her property. Soon thereafter, this plaintiff, acting under the power of attorney, leased the land in controversy to one Karnes, for the term of one year commencing March 1, 1918, and ending March 1, 1919. This lease was in writing, and was executed in the presence of and assented to by the said Rhoda.

This defendant, prior to the 1st of March, 1917, resided in Oklahoma, was a married man, with a large family, and had been admitted to the practice of medicine, but, it is suggested, had failed to make good in his profession. His mother invited him to come and live with her on the farm. This invitation seems to have been extended in December, 1916. He came and took up his home on the farm with his mother and his brother, M. N. Kelley, who was then unmarried. These sons resided with the mother until some time in the summer of 1917, when she went to live with her daughter, Mrs. Karnes, leaving the farm in the possession of this defendant, C. J. Kelley, and he and his family were in the possession of the land at the time the power of attorney was given to this plaintiff, John T., and at the time the lease was made to Karnes, and at the time the mother died. On or about the 28th day of January, 1918, the administrator, plaintiff herein, served notice on C. J. Kelley and his wife to vacate on or before March 1, 1918, giving them notice that the land had been rented, by written lease, to Karnes by Rhoda Kelley before her death, and further notifying them that, unless they vacated and removed from the premises on or before the 1st of March, proper action would be taken to remove them. They did not move, however, and on the 2d day of March, another notice was served by this administrator, requiring them to move from the premises within three days from the completed service of the notice. The defendant did not move in obedience to that notice. An action in forcible entry and detainer was commenced before a justice. A hearing was had, and a verdict returned against defendant, and a writ issued, commanding the proper officer to remove him from the premises, in obedience to the judgment and order of the court. Before this writ was served, the defendant, with his family, moved from the premises, and appealed to the district court from the action of the justice. Upon a hearing in the district court, judgment was rendered for the defendant, holding that he was rightfully in possession of the property, and the action of the justice was reversed. From this judgment, plaintiff appeals, and his contention is that defendant was in possession of the land as a tenant at will or sufferance, and, therefore, upon the service of 30 days' notice, all his rights in the premises ceased, and, at the expiration of the 30 days, and upon the service of the 3 days' notice to quit, his detention became wrongful, as against this plaintiff, and that the court erred in holding otherwise.

The contention, however, of the defendant is that, before the power of attorney was executed to this plaintiff, before the lease to Karnes was made, and before his mother's death, he had made an oral lease with his mother for the possession of the premises, commencing March 1, 1918, and ending March 1, 1919; that, at the time he made this lease, he was in possession of the land, with the knowledge and consent of his mother, under some arrangement which does not clearly appear.

We would gather from the testimony that his occupation during the year 1917 was permissive only, and subject to his mother's will. If this be true, then he was a tenant, if tenant at all, at the will of Rhoda, and all his rights under such occupancy were terminated by the 30 days' notice, and the plaintiff, who is authorized to bring this action, under Section 4209 of the Code of 1897, had a right to maintain it, and, upon the service of the notice terminating the tenancy, and upon service of the 3 days' notice required by statute, was entitled to oust him from the premises. The fact that he was a tenant at will or sufferance during the year 1917 would not justify his ouster, even upon the service of this notice, if he had acquired a right to the possession for the year beginning 1918. There is involved in this suit only his possession after March 1, 1918. At the time of the trial, Rhoda was dead. The defendant's mouth was closed by "the dead man's statute," and the evidence, therefore, is, of necessity, very meager upon this point, since his right rests in parol. One witness testifies to a conversation had between Rhoda, the mother, and this defendant, claimed to have taken place prior to the execution of the lease to Karnes, and, we take it, prior to the execution of power of attorney to this plaintiff; and from this, defendant seeks to make it appear that this defendant acquired a right to the premises for the year commencing January 1, 1918. This testimony comes from his daughter, Rhoda Kelley, who says that, on the 13th day of August, she was at the Karnes home. She testified:

"Mrs. Karnes is father's sister [Rhoda's daughter]. They live about a mile from where I live. I went over to the Karnes' home from my home on that day. Papa [meaning C. J. Kelley] took me over and came after me. I saw the plaintiff there; also saw Tom Calligan. Saw John T. Kelley get the power of attorney that day. I heard father and grandmother have a talk there that day. That talk took place in her bedroom. Father, grandmother, and I were all that were present. Papa asked her if he could have the place for another year, and she said 'Yes '"

She...