Merrell v. Garver
| Decision Date | 11 March 1913 |
| Docket Number | 7,785 |
| Citation | 101 N.E. 152,54 Ind.App. 514 |
| Parties | MERRELL v. GARVER ET AL |
| Court | Indiana Appellate Court |
Rehearing denied June 20, 1913. Transfer denied November 18 1913.
From Fayette Circuit Court; N. S. Givan, Special Judge.
Action by Sarah E. Garver and others against William Merrell and others. From an adverse judgment, the defendant, William Merrell, appeals.
Reversed.
McKee Frost & Elliott and Conner, Conner & Chrisman, for appellant.
Florea & Broaddus, for appellees.
This is a suit for partition of real estate. The complaint was answered by general denial. Appellant filed a cross-complaint against his codefendants and the plaintiffs in which he alleges that he is the owner of a certain brick livery barn and shed attached thereto; that the same is not a part of the real estate upon which the building stands. This cross-complaint was answered by general denial. Upon request, the court made a special finding of facts and stated its conclusions of law thereon.
The substance of the finding of facts, as far as material to the questions to be decided by this court, is: That on February 11, 1869, one Abram B. Conwell was the owner in fee simple of certain real estate described in the complaint and continued to be such owner until the time of his death in 1885; that on February 11, 1869, said Conwell executed to one Moses Long a written lease for a certain portion of said real estate in the city of Connersville, Indiana, for a term of years from August 31, 1869, until December 31, 1890, for an annual rental of $ 300; that said tenant was to pay the taxes and assessments against said lot during the time of said lease with the further condition that upon failure of said Long to pay any of the sums so due from him, his rights under the lease were forfeited; that said Long and his heirs and assigns were to have the right to improve said real estate by erecting thereon buildings and using the same for a livery stable; that said Long and his heirs and assigns were to deliver up the quiet and peaceable possession of said real estate on December 31, 1890, to the said Abram B. Conwell, his heirs, executors or assigns; that "all buildings and improvements made or now on said premises by said Moses Long, his heirs or assigns shall belong to the said Moses Long, his heirs or assigns with right of removal by him or them if a contract for the same cannot be made mutually by the said Conwell and Long, their heirs and assigns"; that thereafter, by assignment duly made, during the life of said lease, Thomas J. Shields, became the owner of all the property rights and privileges secured to said Long by the terms thereof; that said Shields took possession of said premises under said lease and continued to hold the same as hereinafter stated; that by the terms of the last will and testament of the said Abram B. Conwell his daughter, Anna Merrell, became the owner for and during her natural life of the real estate upon which such livery barn was situate, and by the further terms of said will the children of said Anna Merrell, appellant and appellees, became the owners as tenants in common of said real estate subject to the life estate of said Anna Merrell therein; that said Moses Long in pursuance of the terms of said lease made valuable improvements upon said real estate consisting of a two story brick livery barn and frame shed connected therewith, which buildings were on said estate at the time said lease was assigned to said Thomas J. Shields; that said improvements are still upon said real estate; that at the expiration of said lease on December 31, 1890, by mutual agreement between said Shields and said Anna Merrell, the owner of the life estate in said real estate, said Shields continued in possession of said property "under the same terms and conditions provided for in said lease of date February 11, 1869"; that he paid rents for said premises to said Anna Merrell, the life tenant; that the remaindermen, appellees herein, did not consent to the holding over of said Shields under said lease; that after said Anna Merrell was the owner of said life estate said Shields became in arrears in the payment of taxes on said property as provided in said lease, and on June 7, 1901, transferred and assigned to the said Anna Merrell all his title and interest in said improvements upon said real estate in consideration of his release from payment of taxes accrued against him and from liability, thereafter to pay taxes on said real estate, but it was expressly provided that he should pay taxes on the said improvements assessed against him; that by the terms of said instrument he was given the right to occupy said premises and use the same as under the former lease for a period of two years from June 1, 1901, for which he agreed to pay a rental of $ 40 per month; that thereafter on September 23, 1901, said Anna Merrell transferred and assigned to appellant all her right, title and interest in said improvements situate upon said leased premises; that said Anna Merrell continued as the owner of the life estate in said property until her death in November, 1905, "and the said William Merrell continued to be the owner of whatever interest the said Anna Merrell owned and had in said improvements up to the time of the death of the said Anna Merrell and still owns whatever interest the said Anna Merrell transferred and assigned to him and had the power and authority to transfer and assign to him on the 23rd day of September, 1901;" that the real estate described in the complaint is not susceptible of division between the owners thereof without great damage to the respective owners and should be sold; that the real estate on which said livery barn is situate without said buildings, is of the value of $ 6,000 and including said improvements is of the value of $ 8,000; that the improvements placed on the real estate enhanced the value thereof $ 2,000.
The court found the undivided interests of appellant and appellees in said real estate to be in accordance with their several interests in the fee thereof and stated its conclusions of law accordingly. The court also stated as a conclusion of law that appellant has no separate, or additional interest in, or right to, the livery barn aforesaid, other than his interest in the fee as above stated. The appellant duly excepted to the several conclusions of law and moved for a new trial on the ground that the findings of the court are not sustained by sufficient evidence; also that the findings are contrary to law. The motion for a new trial was overruled. The appellant has separately assigned error on each conclusion of law on the finding of facts. Also that the court erred in overruling his motion for a new trial. Several interesting and important questions are raised by the errors assigned.
Appellant asserts that the livery barn erected on the lot in question in pursuance of the terms of the original lease was and is personal property; that the life tenant purchased the buildings as such and transferred the same to appellant, who owned the same when this suit was begun and is entitled thereto, separate and apart from the real estate upon which the barn is situated. Appellees contend: (1) That by holding over under the original lease from December, 1900, to June, 1901, the lessee forfeited his right to the buildings and they became a part of the real estate; (2) that by taking a new lease in which the buildings were not reserved to the tenant, the right to claim the same was forfeited and they have become and are a part of the real estate; (3) that when Anna Merrell, the life tenant, purchased the buildings, the lease hold estate was merged in her life estate and at her death the owners of the fee took the buildings as a part of the real estate upon which they are located.
Where the tenant, by the terms of his lease, has the right to remove buildings or fixtures, and holds over under the old lease, by consent of the landlord, express or implied the right to remove fixtures or buildings is not lost to the tenant. Jones, Landlord and Tenant § 718; Hedderich v. Smith (1885), 103 Ind. 203 205, 2 N.E. 315, 53 Am. Rep. 509; Adams v. Tully (1905), 164 Ind. 292, 295, 73 N.E. 595; 19 Cyc. 1067; Young v. Consolidated Imp. Co. (1901), 23 Utah 586, 65 P. 720; Wright v. MacDonnell (1895), 88 Tex. 140, 30 S.W. 907. The facts found show no ground for a forfeiture of the buildings unless it results from the failure of the tenant to pay taxes which were due the life tenant as a part of the rent. No failure of any kind on the part of the tenant is shown prior to the death of Abram B. Conwell. The life tenant was entitled to the rents and the remaindermen were not affected by any failure to pay, or by any adjustment of rents. Forfeitures are not favored in law, and nonpayment of rent will not ipso facto work a forfeiture of a lease which provides for a forfeiture thereof upon default of payment. There must be some affirmative action on the part of the one having the right to enforce the forfeiture. In this case no demand is shown and no steps were taken by the life tenant, or any one else to work a forfeiture. As the only default was a failure to pay a part of the rent when due, the life tenant to whom the rent was owing, was the only person who could at that time insist upon a forfeiture for such nonpayment of rent, and she did not do so, but on the contrary, accepted payment thereof after it was due. Where a right to forfeit a lease is given for the nonpayment of rent, the acceptance of payment of the past-due rent and the continuance of the relation of landlord and tenant, thereafter, shows a waiver of any right of...
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