Town of Lakota v. Gray

• Decision Date: 08 February 1949
• Docket Number: 47372.
• Citation: 35 N.W.2d 841,240 Iowa 193
• Parties: TOWN OF LAKOTA v. GRAY.
• Court: Iowa Supreme Court

35 N.W.2d 841

240 Iowa 193

TOWN OF LAKOTA v. GRAY.

No. 47372.

Supreme Court of Iowa

February 8, 1949

Leo E. Fitzgibbons, of Estherville, for appellant.

J D. Lowe, of Algona, for appellee.

SMITH Justice.

The controversy arises upon defendant's motion attacking plaintiff's petition. The motion was overruled and we are left to infer (probably under rule 86, R.C.P.) that defendant, by not pleading over, elected to stand on it and that a final adjudication against him resulted, from which the appeal is taken. We shall so assume since actual entry of final judgment is not shown.

It stands admitted, as alleged in the petition, that defendant was in possession of plaintiff's premises under a written lease expiring March 31, 1948; that on April 2nd a three day notice to quit was given pursuant to Code, section 648.3; that thereafter 'an action in ejectment' was commenced and later dismissed; and that on May 7, 1948 another three day notice to quit was given, notwithstanding which defendant retained possession. The lease named one R D. Johnson as lessee but had been reformed by a decree that defendant was lessee and Johnson his agent. This action was commenced May 11.

1. Defendant claim the petition shows on its face the action is barred under Code, section 648.18 which provides: 'Thirty days peaceable possession with the knowledge of the plaintiff after the cause of action accrues is a bar to this proceeding.' (Italics supplied.) The statute once read 'peaceable and uninterrupted.' See section 3621, Code of 1873. The change however does not seem significant.

We have stated above the substance of the petition. It undoubtedly showed thirty days possession after the cause of action accrued and before the petition was filed. But mere lapse of time is not sufficient under the statute. The possession must have been 'peaceable.' There was no plea in bar. Defendant elected to rely on the language of the petition as showing peaceable possession.

We do not think it does. The statute is to be distinguished from the ordinary limitation statute under which, if the petition shows the necessary lapse of time, it is subject to attack unless it also shows matter in avoidance, or matter bringing the case within some exception or proviso or saving clause.

This tatute provides a bar only upon an affirmative showing ofpeaceable possession for the stated time. It is for defendant to make this showing if it does not appear on the face of the petition. It is a part of the limitation. Mere possession is not enough. It is not necessary to hold, as plaintiff argues and as the trial court held, that the petition negatives peaceable possession. It is sufficient if it does not affirmatively show it.

However, we think the petition here does indicate a situation inconsistent with any claim by defendant under this statute. We have recently held that retention by a tenant after termination of lease did not constitute 'peaceable possess' where both parties claimed the right of possession and were litigating their claims. Rudolph v. Davis, 237Iowa 1383, 25 N.W.2d 332, 334. 'Peaceable possession means undisputed or uncontested possession.' Rudolph v. Davis, supra. The petition here alleges some sort of 'ejectment' proceeding was brought and dismissed during the thirty day period. Why or when or how it was 'dismissed' does not appear. But certainly, in the face of the allegation, we cannot say the petition shows thirty days peaceable possession.

Decisions from other jurisdictions are of little value because of variations in statutes. Text book articles are not helpful because our statutory action of forcible entry and detainer differs so widely from the original proceeding of that name. However, some cases have commented on the meaning of the words 'peaceable possession.' See North Fort Worth Townsite Co. v. Taylor, Tex.Civ.App., 262 S.W. 505; Collins v. Megason, Tex.Civ.App., 228 S.W. 583, 584, White v. Pingenot, 49 Tex.Civ.App. 641, 90 S.W. 672, 674; Crosbie v. Nat'l. Bank of Commerce, 86 Okl. 174, 207 P. 311, 313.

We are convinced this petition does not show such acquiescence by plaintiff in defendant's continued possession after expiration of his lease as to bar the action. It does not show peaceable possession within the meaning of the statute.

II. What we have said makes unnecessary any extended reference to defendant's further contention that he had become a tenant at will, entitled to a thirty day notice under Code, section 562.4. Again defendant is under the handicap he assumed by relying on a motion instead of an answer. This code section raises a presumption of tenancy at will from thirty days possession 'with the assent of the owner.'

Manifestly we cannot indulge this presumption in the absence of a showing of such assent. If facts existed to show it they could have been pleaded as an affirmative defense. There are no allegations in the petition from which to infer plaintiff's assent to the continued possession or to justify an attack by motion. We must conclude the motion was properly overruled.

III. We have not cited or discussed the cases relied on by defendant. It is significant that plaintiff also cites them. They are not decisive in the present situation. Hall v Henninger, 145 Iowa 230, 121 N.W. 6, 139 Am.St.Rep. 412, was not a forcible entry and detainer case. Its language, quoted and relied on by defendant, assumed the thirty day possession to have been with the owner's consent. That element was not in...