Stone v. Snell
| Decision Date | 09 April 1910 |
| Docket Number | 15,830 |
| Citation | 125 N.W. 1108,86 Neb. 581 |
| Parties | JAMES A. STONE, APPELLEE, v. MARY C. SNELL ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Greeley county: JAMES N. PAUL JUDGE. Affirmed.
AFFIRMED.
J. R Swain, John E. Kavanaugh and T. J. Doyle, for appellants.
J. A Price, G. W. Scott and H. C. Vail, contra.
In March, 1902, one Godkin was the owner of a tract of land in Greeley county, and then leased the same to this defendant, Mary C. Snell, for a term of one year for the agreed rental of $ 200. Before that time there had been negotiations between Mr. Stone, the plaintiff herein, and Mr. Godkin in regard to the purchase of the land by Mr. Stone. These negotiations finally resulted in the sale of the land to Mr. Stone and a conveyance thereof pursuant to said sale. At the time of the lease to Mrs. Snell the negotiations between Mr. Stone and Mr. Godkin had proceeded so far that Mr. Stone claimed that his right to the land was prior to Mrs. Snell's lease, and afterwards Mr. Stone began an action of forcible entry and detainer against Mrs. Snell to recover the possession of the premises. He was defeated in that action and appealed to the district court, and was again defeated. He also instituted against Mrs. Snell an action in the district court for Greeley county, in which he attempted to enjoin her from using the land and from interfering with his right to the use of the land. In this action he was also unsuccessful. Mrs. Snell farmed the land for that season, and when the crops were matured Mr. Stone began an action of replevin against her to recover the crops. This action was afterwards appealed to the district court, and tried there, and judgment was rendered against Mr. Stone for a return of the property replevied, and, in case a return could not be had, for the value of the property and for damages amounting to $ 479.35. Upon Mr. Stone's appeal to this court that judgment was affirmed. Stone v. Snell, 77 Neb. 441, 109 N.W. 750. Afterwards Mrs. Snell applied to the clerk of the district court for Greeley county for an execution upon the judgment, and Mr. Stone brought this action against her and the clerk of the court, the object being to set off his claim for rent of the premises for the year that Mrs. Snell occupied the same, under her lease with Godkin, against the judgment, and to restrain the issuing of an execution until such set-off could be accomplished. The attorneys of Mrs. Snell answer in this action, alleging that they were entitled to liens upon the judgment for services rendered by them to Mrs. Snell in obtaining the same and other services. The amount of these liens as claimed exceeded the amount of the judgment. The attorneys asked that their liens might be allowed to the exclusion of Mr. Stone's claim of set-off against the judgment. Upon the trial the district court found in favor of the plaintiff, allowed the defendant's set-off, as claimed, determined the amount due to the respective attorneys, and allowed the same against that part of the judgment of Mrs. Snell in excess of the set-off allowed the plaintiff. From this judgment of the district court the defendant Mrs. Snell has appealed to this court.
1. The defendant claims that the forcible entry and detainer suit and the replevin and injunction suits are inconsistent with the plaintiff's claim of rent, and that by prosecuting those suits the plaintiff has elected his remedy, and is now estopped to claim rent for the premises. The result of the prior litigation was to determine that Mrs. Snell's lease gave her a right of possession during its continuance which was superior to the claim of Mr. Stone, and that he therefore had no right in the premises which he could assert against the lease of Mrs. Snell. This being the case, it has been adjudicated that Mr. Stone attempted to avail himself of a supposed remedy to which he was not entitled. Such a mistake is not an election of remedies. "One is not precluded from resorting to a remedy which the law gives because he has attempted to avail himself of one to which he was not entitled." State v. Bank of Commerce, 61 Neb. 22, 84 N.W. 406. Pekin Plow Co. v. Wilson, 66 Neb. 115, 92 N.W. 176; Turner v. Grimes, 75 Neb. 412, 106 N.W. 465.
2. It is next contended by the defendant that the purchase of the real estate by Mr. Stone and the conveyance to him did not assign Mr. Godkin's interest in the lease with Mrs. Snell. This contention also has been determined against the defendant by the former decisions of this court. In Eiseley v. Spooner, 23 Neb. 470, 36 N.W. 659, it was held that a deed of real estate conveys all the interest of the grantor in the land, including rents not then accrued.
3. It is also urged by the defendant that the plaintiff's claim for rent "could in no event become the subject of equitable set-off." The reason given is that it was "unliquidated, and not reduced to judgment." The lease fixed the amount of the rent at $ 200 for the term. In this state it has been frequently held that if a defendant holds claims against the plaintiff arising upon contract, and on which he could have maintained an action against the plaintiff at the time of the commencement of the suit...
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