Sanders v. Sutlive Bros. & Co. , 187 Iowa 300 ( 1919 )

Ladd, C. J.

l. landlord and TENANT: leases ; lease Lorenz Rigler died intestate, October 13, 1903, seized of the W % of Lot 3 of Block 29 in the city of Keokuk. He was survived by his wife, Margaret Rigler, and their two daughters, Naoma Webber and Sarah Speisz. On October 28, 1903, these daughters executed a deed to their mother, Margaret Rigler, of the above-described real estate for her natural life, providing therein that she should receive all income and profits therefrom during said period, and upon her death said real estate should revert to the grantors. Thereafter, Margaret Rigler entered into a contract, leasing the premises to the defendants for a period of five years from March 15, 1905; and on September 18, 1908, executed another lease of the premises to the defendants for a period of 10 years, to commence at the expiration of the previous lease, to wit, May 15, 1910. The lessor, Margaret Rigler, died intestate, March 6, 1910, a few days more than two months prior to the expiration of the first lease. One Neusch was appointed administrator of her estate. Whether the widow retained a distributive one-third interest in the premises, and the daughters acquired the same by inheritance, or in some way her one-third interest was converted into a life estate, with the remainder in the daughters, is not touched in the argument. The cause is submitted on the theory that Mrs. Rigler was a tenant for life, and therefore the leases terminated upon her death, and the daughters, as remainder-men, were entitled to immediate possession. In re Hubbell Trust, 135 Iowa 637. Conceding this to be so, the issue is whether, subsequently, the daughters and defendants adopt-' ed the 10-year lease as their own. That portion of the lease after the lessor’s death only was void (Hubbell v. Hubbell, 172 Iowa 538), and the daughters, as remainder-men, and the lessees did not occupy the relation of landlord and tenant. If that relation ever existed, it must have sprung from a subsequent contract, either expressed or implied, between them. This was the court’s view in Lowrey v. Reef, 1 Ind. App. 244 (27 N. E. 626), where it was said that:

“To entitle the appellee to any other interest in the lands for a period after the death of the lessor, he must have shown that a contract existed between himself and the appellants, by virtue of which there arose the relation of landlord and tenant, and that this relation existed at the time when the alleged trespasses occurred.”

2-ERROR : subseiawntofa case!8: 3. Landlord and TENANT I leases: ratification by remaindermen. 4. landlord and TENANT! leases: lease from life tenant. 5‘ íease^b^iiíe tion nof: lease by Such a contract need not be one entered anew, but may as well be an agreement between other parties, and subsequently adopted by the remaindermen and defendants as their own. Was this done by the remaindermen and the lessees of the life tenant? On the former appeal, the evidence was held to conrsr ? clusively establish such adoption. 163 Iowa 172; 175 Iowa 582. However much that ruling may be questioned, it is the law of the case, and must stand unless it can be said that other evidence, subsequently adduced, warranted a different finding. Something more than mere continued occupation was essential to the ratification or adoption of the 10-year lease. McIntosh v. Lee, 57 Iowa 356. So, too, had the defendants merely been holding over, with the consent of the landlord, payment of rent as provided in the lease could not well be construed as evidence of ratification, for the lessee in that situation would be under obligation so to pay the rent stipulated in the lease. German State Bank v. Herron, 111 Iowa 25. But the remainder-men were not landlords, and there was no lease between them and defendants, and the ruling in the cited case is not applicable. By continuing in possession, the lessees became liable on an implied promise, for a quantum meruit, not for the rent stipulated in the lease, terminated and void as to the present owners. Accepting the rent according to the terms of the void lease, then, without other arrangement, was in the nature of a recognition of its binding force, and, if continued long enough, might, in connection with Qther circumstances, warrant the inference that the parties had adopted the lease as expressing the understanding between them. Such was the holding on the former appeal. The evidence on which that decision was based appears in the opinion. On the last trial, testimony of Neusch contained in two depositions was introduced. In the first of these, he swore that he told H. L. Sutlive that the 10-year lease would not stand, and was void; that he collected the rent as administrator, and because he supposed it his duty, as such, to do so; that he had nothing to do with the daughters about the rent; that he never acted as agent for them, and had no authority from them to collect the rent; that he accounted for the rent as administrator, and in no other manner; that he was advised by his attorney not to accept rent on the 10-year lease, or act as agent for the daughters; that he was agent for them in the sale of the property to plaintiff; that he told the latter that there was no lease on the property, and that he ought not to recognize the 10-year lease. The Sutlives testified that, at the beginning of the 10-year lease, they called on Neusch and asked him if he intended to carry out the 10-year lease, to which he replied that he had no thought of not doing so, and would make them no trouble; that the heirs looked on the lease as their mother did; that they then explained to him that the check for a month’s rent handed to him was for the first month on the 10-year lease. This conversation was denied by Neusch, though admitting the call. This evidence was not before the court on the former trial, and it is plain that, with such additional evidence before the court, a different conclusion might be reached. If Neusch received rent only as administrator, and not as agent of the daughters, and such rents were paid and received for the use of the premises, and not as rent on the 10-year lease, and this was so understood between him and defendants, then there was no ratification or adoption of the 10-year lease, and no lease on the property to assume, and the reference to contracts in the deed might have been found to relate to that concerning the furnace. But the court was not bound so to find, as appears from the testimony of the Sutlives, and evidence alluded to in the former opinion.

6. Appeal and error : review: questions of fact, verdicts, and findings: findings of trial court. From a careful comparison of the records at the two trials, we reach the conclusion that the evidence first adduced at tbe last trial, considered in connection with that on tbe former trial, read in pursuance of a stipulation, raised an issue of fact which should have been submitted to a jury, bad it not been waived. Thé finding of tbe court on an issue of fact is as conclusive as tbe verdict of a jury, and for this reason its finding and judgment cannot be disturbed. — Affirmed.

Weaver, Gaxnor, and Stevens, JJ., concur.