DocketNumber: No. 21884
Citation Numbers: 108 Neb. 257
Judges: Aldrici, Dean, Elansburg, Flansburg, Hostetler, Letton, Morning, Morrissey, Rose
Filed Date: 3/28/1922
Status: Precedential
Modified Date: 9/9/2022
This was an action in forcible entry and detainer. The matter was tried and submitted to a jury and a verdict returned in favor of defendant. From a judgment entered thereon, the plaintiff appeals.
The defendant ivas in possession of certain Indian lands as tenant under a government lease. By the terms of this lease defendant was required to pay as rent $80 on the 1st of March and $80 on the 1st of November of each year. The written lease specified no place for the payment of rents, merely reciting that rents should be payable to the superintendent of the Omaha agency. Such agency was acting as'trustee for the Indians to whom the lands had originally been allotted. While defendant was in possession under his lease, and on January 24, 1919, these lands were sold to the plaintiff and the deed to plaintiff immediately recorded. Plaintiff did not at once notify the defendant of his purchase of the property, but the defendant learned through others that such purchase had been made, and on March 1, 1919, sent by check to the plaintiff the $80 rental due at that time. Plaintiff did not acknowledge receipt, and defendant testifies that he was not then sure whether the rent had ever been received. However, defendant did testify, and his testimony is uncontradicted, that in June of that same year he met the plaintiff and plaintiff told him that he had purchased the land, but that defendant made no inquiry as to whether or not the March rent had been received. In August defendant again met the plaintiff, but had no further conversation with regard to the land. At the time the November rent became due, defendant testifies that he had learned that the Indians were complaining and were making statements that they were going to endeavor to get the land back from the plaintiff. Defendant testifies that he did not, at that time, send
The tidal court submitted to the jury, as issues of fact, the question of whether or not defendant knew that plaintiff had become the owner of the land and whether he knew Avhere plaintiff could be found; the question of Avhether or not the defendant Avas in default; and the question of whether or not the plaintiff had waived such default. The jury’s verdict on these issues was in favor of the defendant.
After a careful consideration of the evidence avc have reached the conclusion that there were no disputed facts to submit to the jury in this case. The case must be decided as a matter of law. The lease was in writing, but did not specify Avhere the rent should be payable.
It is the general rule that payments must be made, in the absence of an agreement fixing the place of payment, where the creditor resides, or wherever he may be found;
. Such, however, is not the rule in contracts for the payment of rent for the use of real property.
In Gear, Law of Landlord and Tenant, sec. 135, it is said: “When the lease is silent as to the place of payment, rent is payable upon the leased premises.” See Burnes v. McCubbin, 3 Kan. 221; Fordyce v. Hathorn, 57 Mo. 120; Walter v. Dewey, 16 Johns. (N. Y.) *222; Hunter v. LeConte, 6 Cow. (N. Y.) *728; Van Rensselaer v. Jones. 5 Denio (N. Y.) 449; Livingston v. Miller, 11 N. Y. 80, 91; Coke, Littleton, 201b; Sheppard’s Touchstone, 378. Bergdoll v. Spalding & Bros., 234 Pa. St. 588.
In Taylor, Landlord and Tenant (9th ed.) sec. 392, it is said: “And whether payable in money, or in kind, if no place of payment is specified, a tender of either upon the land is good, and prevents a forfeiture.” See Lush v. Druse, 4 Wend. (N. Y.) 313; Walter v. Dewey, 16 Johns. (N. Y.) *222; Van Rensselaer v. Jones, supra.
“Although the tenant .is not under obligation to seek the landlord, when the contract is silent as to the place of payment, a personal tender to the landlord anywhere is held sufficient.” Taylor, Landlord and Tenant (9th ed.) sec. 392.
In 24 Cyc. 1191, it is said: “Where no place is appointed for payment, rent issuing out of land is payable on the land.” And “Where rent is payable either in money or kind, and the lease is silent as to the place of payment, a tender of the rent by the lessee upon the land is good; and it is not required of the, lessee to make the tender to the lessor personally” — citing Fordyce v. Hathorn, 57 Mo. 120, and other cases.
So far as our research has gone, we have found no law to the contrary. There is certainly nothing in the statutes
Section 8467, Rev. St. 1913, provides: “A tenant shall be deemed to be holding over his term Avhenever he has failed, neglected, or refused to pay the rent or any part thereof when the same became due.” This provision of the Iuav clearly means that, when a tenant has wrongfully failed, etc., to pay rent, then he shall be considered as holding Over his term. So long as he has not violated the written contract, between himself and the landlord he is not in default. The defendant in this case has not breached the lease. He. has at all times been ready to comply with his
It is thus we believe the law to be. Under this view of the law, the undisputed evidence warrants but one conclusion, a verdict and judgment for the defendant. We do not find it necessary to consider any other proposition.
The judgment is
Affirmed.