Pohlman v. Smith

CONREY, P. J.

Under date May 29, 1924, the plaintiff executed to the defendant a lease in writing of three acres of land for the period of one year, the tenant to pay rent at the rate of one hundred dollars per month. After delinquency in payment of rent and after the statutory notice had been given, plaintiff commenced this action on account of neglect and refusal of defendant to pay the rent due or quit possession of the premises.

By his answer the defendant denied that he entered into possession of the premises under and by virtue of the written lease, but alleged that he went into possession thereof in February, 1921, at which time and all times thereafter the defendant was the owner of an undivided one-third interest in said property. It is an admitted fact that at all of said times the legal title to said premises was vested in the plaintiff. The substance of the defense was that the defendant and his brother, together with their mother (the plaintiff), had purchased said property with a common fund belonging to all of them, and that they entered upon and continued their possession of said premises as such co-owners or cotenants. As a separate defense the defendant alleged that he and his said brother and the plaintiff had been engaged in business as partners and owned said real property as partners; that in May, 1924, there was a certain division of assets between the parties (not including said real property), but at that time the plaintiff demanded of the defendant that he take a lease of said premises for one year and pay her a rental of one hundred dollars per month therefor; that she caused such lease to be prepared and presented the same to him and demanded that he sign the same; that in signing said lease the defendant did not believe that the same would affect his

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title to or right of possession of the property, nor estop him from asserting his rights in any court or action; that had he known that the signing of the lease would affect his right to the possession or estop him from asserting said right he would not have signed said lease; that in signing said lease he never intended to waive any right in the property or right to possession as a co-owner thereof; that at the time of the signing of said lease, the plaintiff knew that the signing of said lease would act as an estoppel against said defendant; that “the mistake made by said defendant in determining the legal effect of said lease was known to the plaintiff at the time of signing the same; and plaintiff did not inform or advise this defendant of his mistaken belief as to the legal effect of said document. ’ ’