Lindsey v. Bloodworth , 97 Ark. 541 ( 1911 )

Wood, J.

(after stating the facts). Under the act of February 5, 1891, where the tenant refuses to pay rent when due the landlord may maintain an action of unlawful detainer against him, if he refuses to quit possession after the landlord has given him three days’ notice to quit and made written demand upon him for the possession. Section 3630, Kirby’s Digest; Parker v. Geary, 57 Ark. 303. The allegation in the complaint that the plaintiff was unlawfully deprived “of his one-third share of the crop of oats,” and that “defendant has refused to pay rent to this plaintiff, and has appropriated the entire crop of oats to his own use,” is sufficient to show that the appellant had raised an oat crop on a portion of the place, one-third of which was due appellee for the use of the land, and that appellant had not given to appellee this one-third, but had appropriated it to his (appellant’s) own use. The necessary inference from this allegation is that the appellee’s rent, represented by the portion of the crop he was to receive, was due, and that appellant had refused to pay or deliver it to appellee.

The other allegations of the complaint show that the appellant had violated the obligations of his contract with appellee in such manner as to evince an intention on his (appellant’s) part not to pay the rents as stipulated for, and, in fact, to abandon the contract. The complaint is crude, but, taken as a whole, it certainly states facts to show that appellant had wholly abandoned the contract which created the tenancy, and that his holding thereafter was unlawful.

The cause of action was stated inartistically and defectively, but it was nevertheless stated, and called for some response from appellant, and he must suffer the consequences of his failure to answer. As was said in Buckner v. Warren, 41 Ark. 534: “If the facts as set out in the complaint are true, the defendant had himself abandoned the contract. This authorized the plaintiff to disaffirm it, and to regain possession of his land by this summary process.” The allegation of the complaint that “plaintiff has caused a written notice to be served on the defendant more than three days before the commencement of the action demanding possession of said premises, and said notice is hereto attached marked ‘Exhibit B’ and made part of this complaint,” was sufficient to describe the lands, when taken in connection with the further allegation that plaintiff had “rented to the defendant certain parts of his farm in section 16, township 21 north, range 5 east, in Clay County, Arkansas.” With the description of the land given in the complaint and the reference made to the “said premises,” possession of which was demanded in the notice that was made an exhibit to the complaint, the court could readily identify the land. The notice could be referred to, not to contradict or control, but in explanation of, the allegation. This is not in conflict with Buper v. State, 85 Ark. 223, where we held that the exhibit could not be used to control the averments of the complaint, hiere it is used, not to control, but to complete and explain the allegations of the complaint. Bouldin v. Jennings, 92 Ark. 299; Abbott v. Rowan, 33 Ark. 596.

The court will take cognizance that there are two judicial districts in Clay County, created by act of the Legislature, and will also take notice of sections, townships and ranges according to surveys of the United States Government, and of the particular judicial district in which these are located. Bittle v. Stewart, 34 Ark. 224. See also Rachels v. Stecher Cooperage Works, 95 Ark. 6.

There is no error, and the judgment is affirmed.

Kirby, J., dissents.