Marshall v. Brann , 295 S.W.2d 574 ( 1956 )

PER CURIAM.

Appellant, Mrs. Jessie Marshall, has moved this court to grant her an appeal from an order of the Hickman Circuit Court dismissing her petition for damages against J. K. Brann, a tenant on her land, whom she alleges wrongfully planted and harvested a corn crop on the land in 1950. The suit, filed in September, 1952, and practiced under the Civil Code of Practice, is in tort for trespass. The suit is premised on the allegation of Mrs. Marshall that the year to year tenancy agreement which had existed between her and Brann from 1939 until 1950 was rescinded by them by mutual agreement as evidenced by correspondence during February, 1950, and that Brann’s planting and harvesting of a crop, after the rescission had been effected, amounted to a trespass.

The correspondence relied on as effecting the rescission ,was incorporated by reference into appellant’s complaint. The trial judge concluded that the correspondence did not show a rescission of the tenancy, and that appellee was not a trespasser since, under KRS 383.160(1), he was entitled to hold over for another year because he retained possession for more than ninety days' after the day of expiration of the prior year’s tenancy.

The correspondence incorporated by reference into the complaint is the basis of the allegation of a rescission of the tenancy. The correspondence is vague and even contradictory of the allegation of rescission.

The motion for appeal is overruled and the judgment is affirmed.