Lansman v. Drahoss

• Decision Date: 18 March 1880
• Parties: LANSMAN v. DRAHOSS AND OTHERS.
• Court: Nebraska Supreme Court

10 Neb. 172

4 N.W. 956

LANSMAN

v.DRAHOSS AND OTHERS.

Supreme Court of Nebraska.

Filed March 18, 1880.

Appeal from Cuming county.

Uriah Bruner, for appellant.

Crawford & McLaughlin, for appellee.

MAXWELL, C. J.

This case was before this court in 1879, and is reported in 8 Neb. 457. The plaintiff moves for a rehearing upon the ground that Sonneshine was the tenant of the plaintiff at the time he purchased the property in question, and that therefore he could not acquire an adverse title as against his lessor. No stress was laid upon this point in the former argument of the case, nor is the petition framed for the particular purpose of seeking to redeem from Drahoss and Sonneshine, the particular object aimed at being to require Mrs. Parrot to exhaust the other mortgaged property before selling that purchased by the plaintiff subject to the decree of foreclosure. The petition is very long, with the exhibits, covering 64 pages. Much of it could have been stricken out, on motion, and thereby have made the petition more symmetrical. But, notwithstanding the want of form in the petition, all the facts, which are well pleaded therein, for the purposes of the action are admitted to be true.

The petition alleges, in substance, that on or about the first day of October, 1877, the plaintiff rented said lot 6, in block 19, to the defendant Frederick Sonneshine, who entered into possession of said premises as said tenant, and as such tenant continued possession of the same until after the sale and confirmation thereof; that the plaintiff was absent from this state from the fifteenth of June, 1876, till about the fifteenth of January, 1878, and had no notice of said sale, and confirmation thereof, until a long time after the confirmation of the same; that said Drahoss and Sonneshine purchased said lot for the sum of $452, although it was worth the sum of $1,200 at that time, and is still of that value, and that they purchased said lot with the intention of defrauding the plaintiff; that they have been and are in possession of said premises, the rental value of which is about $10 per month. There is no prayer in the petition to redeem this lot from Drahoss and Sonneshine, the prayer upon that matter being to have their title declared void; but there is a general prayer “for such other and different relief as equity and the nature of the case may require.”

Drahoss and Sonneshine join in a general demurrer to the petition, so that, if there is a cause of action stated against either, the judgment must be reversed. Dunn v. Gibson, 4 N. W. REP. 244;S. C. 9 Neb. 513. As a general rule a tenant will not be permitted to deny the title of his landlord so long as the tenancy exists. But where the landlord's title has been extinguished, in an action for rent by the lessor, these facts may be shown as a defence. The relation of landlord and tenant can be created only by lease, either in writing or by parol. It is said that there is a tenure between lessor and lessee for years, to which fealty is incident by theory of law as well as of privity of estate between them. 1 Wash. Real Prop. 413; Thrall v. Cmaha Hotel Co. 5 Neb. 300. And where the relation of landlord and tenant has been established it attaches to all who take through or under the tenant as assignee. In Mattis v. Robinson, 1 Neb. 3, one Mattis leased certain premises for one year, and after the expiration of the lease, but...