Wesy v. Lungren

• Decision Date: 08 June 1905
• Parties: WEST v. LUNGREN ET AL.
• Court: Nebraska Supreme Court

74 Neb. 105

103 N.W. 1057

WEST

v.LUNGREN ET AL.

Supreme Court of Nebraska.

June 8, 1905.

Syllabus by the Court.

1. A tenancy from year to year will be presumed, when a tenant remains in possession after the expiration of his term, and his tenancy is recognized by the landlord. Critchfield v. Remaley, 31 N. W. 687, 21 Neb. 178, followed and approved.

2. This rule is, however, only a rule of presumption, and the presumption is rebutted by proof of a different agreement, or of facts inconsistent with the presumption. Montgomery v. Willis, 63 N. W. 794, 45 Neb. 435, followed and approved.

Commissioners' Opinion. Department No. 1. Error to District Court, Antelope County; Boyd, Judge.

Action by C. A. Lungren and A. G. Lungren against Simeon West. Judgment for plaintiffs. Defendant brings error. Affirmed.E. D. Kilbourn, for plaintiff in error.

O. A. Williams, for defendants in error.

OLDHAM, C.

This was an action in forcible entry and detainer to recover the possession of 80 acres of land situated in Antelope county, Neb. Cause was originated before a justice of the peace of said county, and taken by appeal to the district court. On a trial in the district court to a jury, there was a verdict and judgment of restitution for plaintiff in the action, and to reverse this judgment the defendant brings error to this court.

It appears from the evidence that in the year 1884 the defendant in the court below leased the premises from James Gillispie, the then owner, for a period of five years, by an oral agreement; that he subsequently entered upon the premises, and continued in possession thereof, for an annual rental of one-third of the crop raised thereon, until the time this suit was instituted; that he was on the land when James Gillispie died, in the year 1901. After Gillispie's death, a partition suit was brought, and the lands in controversy, with other lands, were sold, and plaintiff in the court below purchased these lands at the partition sale. It also appeared that in November, 1901, Josie Gillispie, executrix of the estate of James Gillispie, had a conversation with defendant in the court below, in which she requested him to remain another year on the premises, until the lands should be disposed of by the court, and that he did so. With reference to this conversation, defendant West testified as follows: “A. Well now, I did have a conversation with her. Q. You agreed at that time with her that you would remain on there for the year 1902, did you? A. She asked me if I was going to stay there another year. I told her I had not made any arrangements for anything different. ‘Well,’ she said, ‘I want you to stay another year, or longer, if necessary.’ She says, ‘I don't know when that land will be sold. I don't want to change renters.’ Q. When was that, that you had this talk with Josie Gillispie? A. Last part of November, 1901. Q. And related to the crop of 1902? A. Next year. Q. You knew that she had taken charge of the premises? A. I did. Q. And that she had authority over the renting of the premises for that year? A. Yes, she had authority.” The executrix testified that she only rented the premises for one year, as she had no authority to rent them longer. Before the termination of this tenancy, a notice of more than three days was served on the defendant to vacate the premises on March 1, 1903. On the 12th of March following, this suit was instituted.

No complaint is lodged against any...