Kemp v. Jennings ( 1901 )

Gill, J.

Appellant assigns as error, first, that the court erred in sustaining the plaintiff’s demurrer to paragraphs eight and ten of defendant’s answer. We do not think this contention is good. Paragraph eight of said answer reads as follows:

“This defendant further states that under and by virtue of the Act of Congress of June 28, 1898, known-as the “Curtis Bill,’ this defendant, being the owner of improvements upon said lot, was, and still is, entitled to purchase a fee simple title to said lot from the Chickasaw Tribe of Indians, as soon as the said lot can be appraised under the provisions of said Act of Congress. That said lot is situated in the town of Wyneewood, which has three thousand inhabitants, and prior to the institution of this suit, had been duly incorporated by the order of this court.”

tenant of the plaintiff. Finley could not acquire, from Kemp any more rights than Kemp had in and to this-property. Kemp being a non-citizen could acquire no right to hold this property, except through some citizen landlord. The plaintiff, by written agreement with Kemp, was acknowledged as Kemp’s landlord. Whatever Finley took or acquired from Kemp was subject to and incident to Kemp’s relation as tenant of the plaintiff in and to this property and the court very properly held that paragraph eight offered no defense whatever as against the landlord of Kemp.

In like manner, paragraph ten is a legal conclusion, and offers no defense and the demurrer thereto was properly sustained.

The second assignment of error is that the court erred in refusing to instruct the jury to return a verdict for defendants. The evidence in this case shows that the defendant, Kemp, undertook to dispose of the title to said lot in contravention of his landlord’s title, and that the defendant, Finley, was holding adversely to the plaintiff’s title, if at all. The relation of landlord and tenant having been shown and the tenants undertaking to hold in contravention of their landlord, the court properly refused to instruct the jury to return a verdict for defendants, even though defendants had made the tender referred to in the motions and in the evidence.

The third assignment of er ror is that the court erred in refusing to instruct the jury, as requested by defendants, that if there was an option in the contract to renew at the end of the first year, then it was incumbent upon the plaintiff to demand the rental for the second year before she could declare the contract was at an end.Under the evidence in the case the contract between the plaintiff and defendant was introduced, which contract reads as foil ows:

“But upon|the said H.JTL. Jennings refusing to accept the rent'therefore, then the said H. L. Jennings shall purchase all improvements put upon said lot at their enhanced value at the expiration of this contract, provided that said yearly rental is tendered at the expiration of this contract, and if not tendered, improvements are to be removed and possession of said lot given up to H. L. Jennings, or assigns. The contract was to expire by its own terms on July 18, 1898, and it is clearly provided therein that the yearly rental therefor is to be tendered at the expiration of the contract, and if not so tendered, the improvements are to be removed and possession of said lot given up to H. L. Jennings or assigns.” Under this contract it became the duty of the defendant, Kemp, to go at the expiration of the contract and tender to the plaintiff the rental for said land, and upon his failure to do so, he then had the right to remove the improvements he had at the time on the premises, and possession should be given to the plaintiff. If he failed to keep his part of the contract, he would have no right subsequently to make any tender. His right to the possession of the land expired by express terms on July 18, 1898, and all the rights he¿had therein from that date were the rights to remove whatever improvements he had on the premises within a reasonable time thereafter. It was not incumbent under the contract upon the plaintiff to demand any rental. The contract by its terms expired when the defendant failed to make the tender on the day of its expiration; and the court properly refused to instruct the jury that it was incumbent upon the plaintiff to demand rental for the second year before she could declare the contract at an end.

Defendant's fourth assignment of error reads as follows:

“The court erred in instructing the jury as requested by the p’aintiff that it was incumbent upon defendants to demand a renewal of the contract, and that its failure at the end of the first year to demand a renewal and pay rent for the ensuing year would work a forfeiture of the contract.” For the reasons given as to the third assignment of error heretofore, this fourth assignment is not well taken. It was the duty of the court to instruct the jury that it was incumbent upon the defendant to ask for a renewal of the contract and to tender the annual rental, and such failure on the part of the defendant to do so, worked a forfeiture of any rights of the defendant under said contract in said premises, except merely the right of removal of his improvements within a reasonable time.

The fifth assignment of error is that the court erred in refusing to suspend proceedings after the defendant had paid into court before judgment, the entire amount of accrued costs and rents. There was no error in the action of the court in this regard. The defendant, having no rights whatever in the premises, was bound to restore these premises to the plaintiff upon demand, and the fact that the defendants brought sums of money into court wouldfgive them no rights whatever to retain said premises.

The sixth assignment is that the court erred in refusing to grant these defendants a new trial; and thp court, having committed no error in the trial, properly refused to give defendants a new trial ;"andd,he"decision of the lower court must stand as proper in every particular, and the same is, therefore, by this court. Affirmed.