Miller v. Michel

• Decision Date: 24 September 1895
• Docket Number: 1,663
• Citation: 41 N.E. 467,13 Ind.App. 190
• Parties: MILLER v. MICHEL ET AL
• Court: Indiana Appellate Court

41 N.E. 467

13 Ind.App. 190

MILLER v. MICHEL ET AL

No. 1,663

Court of Appeals of Indiana

September 24, 1895

From the Vanderburg Superior Court.

Judgment affirmed.

J. W Davis and E. Q. Lockyear, for appellant.

G Palmer and P. Maier, for appellees.

OPINION

GAVIN, J.

Appellant leased a farm to appellees, Michel and Engelman, for five years at $ 700.00 per year. They paid the first year's rent and $ 300.00 on the last year, which was really paid in lieu of security. At the end of the first year appellees left the farm and sued to recover the $ 300.00, alleging an eviction by appellant, who answered by denial, and also filed a counterclaim averring that appellees had abandoned the land and he had been compelled to re-rent to another tenant at a less price. For the difference between that and the contract price he asked to recover.

Appellant questions the sufficiency of the evidence to sustain the verdict against him. He earnestly argues that there is no evidence of eviction. There is testimony that without the consent of appellees, and before the expiration of their first year appellant put another into a house upon the place, and he began to plow for wheat, having rented the farm from appellant for a term of five years.

These acts constituted more than a mere fleeting trespass. They were of such a serious and permanent character as to indicate an intention upon the part of appellant to deprive appellees of the enjoyment of the land. These acts were done as the jury might well infer from his own testimony under an assertion of right, he deeming he was entitled to do them by reason of appellees having told him they would not keep the farm, and, as his son testifies, with the express consent of one of the appellees as to part of the acts. The evidence, while conflicting, was such as to authorize the jury to find that there was an eviction from part of the land and an abandonment by appellees of the entire land for the remainder of the term. Under the authorities, when thus ousted by their landlord from a material part they had a legal right to abandon the whole. Avery v. Dougherty, 102 Ind. 443, 2 N.E. 123; Rice v. Dudley, 65 Ala. 68; Hayner v. Smith, 63 Ill. 430; Upton v. Greenlees, 17 C. B. Rep. 51-67; Mayor v. Mabie, 13 N.Y. 151; Skally v. Shute, 132 Mass. 367.

In the 102 Ind. case it is said that the entry by the landlord must be under an assumption of title, although it is intimated that on the trial this might be inferred.

In the last two cases above cited it is decided that the acts themselves may be of such a character as to be assertive of title.

Taylor Landl. and Ten., section 315, says:

"It is also implied that the tenant shall have the free use of the whole of the premises; and if he is ousted from any material part thereof he may treat it as an eviction from the whole premises and throw up the lease."

It is true, as asserted by counsel, that, if appellees had desired,...