Fraer v. Washington ( 1902 )

Gill, C. J.

In the appellant's brief the errors assigned are found in the motion for a new trial. We have carefully read the evidence in this case, and followed, step by step, the action of the court in the trial of this case, and are satisfied that there is no error. Appellant states that there were but two questions presented in all of these assignments, and, for the purpose of presenting the case, considers them together, and we will follow this method in considering the case.

Appellant says: “The main question, therefore, presented is, can an Indian landlord, who does not own improvements upon a town lot in the Chickasaw Nation, but who has simpfy rented a vacant lot, upon which the renter has erected permanent and valuable improvements, sue for and recover possession in unlawful detainer of the lot and improvements, regardgardless of the vested right of the owner under the Atoka treaty to purchase?” At the incipiency of the contract between the landlord and tenant as to town lots in the Chickasaw Nation between a noncitizen and a citizen of that nation, the citizen alone, under the law, would have the right to hold possession of such lot. If a noncitizen should go into possession of property, such as a town lot, without in some way holding the same, he would have no rights whatever which the courts would be bound to recognize. In the case at bar, Fraer, being a noncitizen, could acquire possession of the lot in question only through Washington who was a citizen. This he recognized, and in so doing took possession of this lot as Washington’s tenant. Before he could dispute Washington’s right to repossess himself of these premises, Washington’s right to the premises must have fully expired. This right was governed by the contract heretofore set out, and Fraer voluntarily agreed therein to give possession of said lot; not merely to pay rent to Washington, as his landlord, for the lot, but to redeliver said lot to Washington’s possession upon the payment to him of the value of his improvements thereon. The question presented is altogether different from one where the ultimate disposition of the property is not controlled by the contract. As to what might be the court’s position upon such proposition, it is unnecessary to say; but as to the ease at bar we are convinced that it was in contemplation of the parties at the time of the giving possession of these premises to Fraer that both parties expected that Washington should be restored to the possession of this property. It was not Washington’s duty to demand of Fraer that he re-rent the property for the year 1899, although there is some evidence in the case that he did offer to re-rent the property. Washington had the privilege, under his contract with Fraer, to pay Fraer for the improvements made upon the lot, and to repossess himself thereof. This he endeavored to do, and tendered to Fraer the value of the amount of the improvements on said lot at the expiration of the first year of lease. In our opinion, this was all that he was obliged to do. It was then Fraer’s duty to accept the value of the improvements, and to deliver over to the possession of Washington the lot held by him as Washington’s tenant. Kemp vs Jennings, p.--herein (64 S. W. 616); Ellis vs Fitzpatrick, 3 Ind. Ter. Rep. 656 (64 S. W. 567).

We think that the decision of this one question settles each and every question in dispute in this case. The verdict of the jury, in our opinion, and the judgment of the court below, in this particular case, was proper, and the only verdict and judgment permissible under the law. The judgment of the lower court is therefore, by this court, affirmed.