Smith v. Park

• Decision Date: 25 July 1883
• Citation: 16 N.W. 490,31 Minn. 70
• Parties: Andrew J. Smith v. Daniel A. Park and others
• Court: Minnesota Supreme Court

16 N.W. 490

31 Minn. 70

Andrew J. Smith v. Daniel A. Park and others

Supreme Court of Minnesota

July 25, 1883

Plaintiff brought this action in the district court for Stearns county, to recover possession of a frame building. The action was tried by McKelvy, J., and a jury, and plaintiff had a verdict. Defendants appeal from an order refusing a new trial.

Ordered accordingly, the order appealed from being reversed.

Taylor & Calhoun, for appellants.

Collins & Bruener and N. H. Miner, for respondent.

OPINION

Dickinson, J.

One Amos De Groat died seized of a lot of land which the widow, (now the defendant Mrs. Park,) who had been appointed administratrix of the estate, leased for the term of five years to one Burgess. By the terms of the lease, the lessee had the right, it the expiration of his term, to remove all buildings which he might put upon the premises. Burgess entered under the lease, and erected a small house thereon. About three years after the giving of the lease, the estate was settled, and the property in question was awarded to the heirs, who are the defendants Cornelia Park and Gertrude and Bertie E. De Groat. During the term of the lease Burgess executed to the plaintiff a chattel mortgage upon the house, he knowing the nature of Burgess's title and occupancy. The mortgage was foreclosed, the plaintiff himself purchasing the property. Burgess continued to occupy for the full term of five years, which expired November 2, 1879. He still continuing in possession, summary proceedings were instituted, upon the complaint of Mrs. Park, on the 12th of February, 1880, under the statute, for the recovery of possession, upon the ground that he was unlawfully holding over after the expiration of the five-years' tenancy. February 21st, judgment of restitution was awarded against him, he not having appeared to defend. No writ of restitution was awarded, however, until March 24th, when, by the execution of such writ, he was ejected. The day before, (March 23d,) Burgess commenced the removal of the house from the land, acting in behalf of the plaintiff, but was prevented from doing so by the service of the writ of restitution. Between the time of the rendition of the judgment and its execution, negotiations were had between Burgess and defendants with reference to a continued occupancy by Burgess until April, and the surrender of possession of the property at that time, including the house, to the defendants. It is disputed whether an agreement to that effect was actually made.

The administratrix had power to lease the land during the period of administration. Gen. St. 1866, c. 52, § 6. But this right, conferred by the statute for the purposes of the administration, is limited to that period. The lease for the term of five years was, hence, necessarily subject to be terminated at the will of the heirs when they acquired the right to possess the estate. If, however, the heirs did not elect to terminate the lease, but recognized its validity and the tenancy of Burgess under it during the term named, it was afterwards of no consequence that it might have been avoided. It may fairly be inferred that the continued validity of the lease was so recognized, since nothing is shown to the contrary while Burgess occupied the full term, and because afterwards possession was sought and recovered by summary proceedings, upon the ground of a tenancy for the term of five years and the expiration of...