Mower v. Rasmusson

• Decision Date: 20 May 1916
• Citation: 34 N.D. 233,158 N.W. 261
• Parties: MOWER v. RASMUSSON.
• Court: North Dakota Supreme Court

34 N.D. 233

158 N.W. 261

MOWER

v.RASMUSSON.

Supreme Court of North Dakota.

May 20, 1916.

Syllabus by the Court.

A condition in a lease which provides that the tenant shall not cut growing timber is a material provision, and a violation thereof may be made a ground for the cancellation of such lease and a demand for the surrender of the premises.

The term “lease” imports a contract by which one person divests himself of and another person takes possession of lands or chattels for a term (citing Words and Phrases, Lease).

A contract which designates the party of the second part as the owner of a certain farm and provides that the party of the first part shall have the use and occupancy thereof for a certain term and shall have the right to pasture a horse and cow thereon, and shall sow and plant the land in such crops as the owner may direct, and furnish all labor and machinery necessary thereto, though the owner is to furnish the seed, and which further provides that the title to the said crops shall remain in the owner of the land until the division thereof, and that upon the faithful performance of the covenants and agreements of the party of the first part the owner will give and deliver to him upon said premises one-half of the grain raised, and pay one-half of the thresh bill, is, as to the land and buildings, a lease, and a violation of the terms thereof which is therein made a ground for a cancellation thereof will, after such cancellation, justify an action in forcible entry and detainer in a justice's court for the possession of said land and buildings under the provisions of paragraph 4 of section 9069 of the Compiled Laws of 1913.

A lessee is estopped from denying the title of his lessor.

Appeal from District Court, McHenry County; A. G. Burr, Judge.

Action by Enoch Mower against Charles Rasmusson. From judgment for defendant, plaintiff appeals. Reversed and remanded.Albert Weber, of Towner, for appellant. D. J. O'Connell, of Towner, for respondent.

BRUCE, J.

[1][3] Although this appeal is from a judgment of the district court of McHenry county, it really involves the correctness of the ruling of the justice court in overruling a demurrer to the complaint. The action was one in forcible entry and detainer for the immediate possession of real property and damages for the detention thereof, and was brought under section 9069 of the Compiled Laws of 1913. The sole questions involved are whether the contract under which the defendant held the land was a lease and such a one as would support an action of forcible entry and detainer, and, if so, whether the acts of the defendant complained of constituted grounds for a forfeiture of the same and a recovery of the possession. These acts were the violation of the terms of the contract by “cutting down growing timber, and, instead of using the manure to fertilize the soil, willfully throwing the same into a river which ran through the premises and polluting the same, and allowing the buildings to become out of repair.”

The contract or lease which was involved provided, among other things, that the defendant should till the farm in a good and husbandlike manner; that the defendant should have the use and occupancy of the premises, except one room which the plaintiff reserved to himself for storage purposes; that the plaintiff should have the right to turn a horse and cow into the pasture during the summer time; that the defendant would commit no waste upon such premises, and that he would properly care for and keep all buildings, fences, timber, and shrubbery upon said land, and would not remove any of the straw and manure from said farm, but use the same to the best advantage in fertilizing the land; that the defendant should have the right to use all down dead wood, but not to cut down any of the standing timber.

In addition to this the contract or lease provided that the defendant would sow and plant the land in such crops as the plaintiff might direct; that the plaintiff was to furnish all seed necessary to sow and plant said land, though the defendant was to clean the same; that the defendant should furnish, at his own cost and expense, all proper and convenient tools, teams, farm implements and machinery, and labor to cultivate said farm, and should furnish and provide all proper assistance and hired help in and about the cultivation and management of the same. It further provided that until the division the title to the crops should remain in the owner of the land, but that upon the prompt and faithful performance of all the foregoing agreements and conditions by the defendant the plaintiff should give and deliver upon said premises one-half of the grain raised thereon, the plaintiff to take his half of said crops at the machine and to pay...