Winkler v. Aaron

• Decision Date: 01 January 1896
• Docket Number: 4
• Parties: A. H. WINKLER v. AARON, B. GIBSON et al
• Court: Kansas Court of Appeals

42 P. 937

2 Kan.App. 621

A. H. WINKLER v. AARON, B. GIBSON et al

No. 4

Court of Appeals of Kansas, Northern Department, Eastern Division

January 1, 1896

Opinion Filed December 5, 1895.

MEMORANDUM.--Error from Brown district court; R. C. BASSETT judge. Action by Aaron B. Gibson and others against A. H Winkler and others. Judgment against Winkler, and he brings error. Affirmed. The material facts are stated in the opinion, filed December 5, 1895.

Judgment affirmed.

E. Bierer, and W. D. Webb, for plaintiff in error.

Jas. Falloon, for defendants in error.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

The controversy in this case is about the ownership of a crop of wheat raised and harvested on a piece of land in Brown county. The land, consisting of 160 acres, and belonging to one John K. Ewing, was, on January 11, 1886, leased to C. W. Sheets, for a term ending March 1, 1889, the lease expressly providing that the premises should not be sublet without the consent of Ewing. In the spring of 1886, Sheets sublet to Charles S. Welch, for an agreed rental of one-third of the crop raised, 40 acres of the land, on which Welch raised a crop of corn during that year, and which he planted to wheat in the following fall. About February, 1887, Sheets absconded, leaving his wife in charge of the land and other property. In the leasing of the land to Sheets, Ewing, being a non-resident, acted through a local agent, who had knowledge of the subletting of the land to Welch, and made no objection thereto; nor was any objection made of any violation of the conditions of the lease until after Sheets had left the country. On March 1, 1887, the agent of Ewing entered into a contract of lease for the same premises with the plaintiff in error, Winkler, for a term of three years from that date. No steps or proceedings of any nature were taken at any time for the termination of Sheets's lease or to regain possession of the land. The agent of Ewing proceeded upon the assumption that the term of Sheets might be considered forfeited and terminated by the mere fact of the subletting to Welch in violation of the terms of the lease. Welch remained in the undisturbed possession of the land and wheat until after it was harvested, in June, 1887, when this controversy arose by Winkler claiming ownership of the wheat under the lease entered into between him and the agent of Ewing. The trial court found against...