McVitty v. Flentge

WASTE, P. J.

This is an appeal by the defendant from a judgment, in favor of plaintiff, for the possession of certain farming land, and for damages for the withholding thereof.

The defendant was in possession of the land in question under a lease from one Otto L. Harden, for the term of three years, commencing November 1, 1915. On November 1, 1916, he paid Harden $110, the rent for the year next ensuing after that date. The lease contained this provision: “If said land is sold before expiration of said lease the party of the second part' to be paid for all summer-fallow at going price per acre, provided purchaser wants possession immediately.” Harden sold, and conveyed the land to plaintiff by deed, executed and delivered January 22, 1917. Plaintiff, relying on his grantor to place him in possession

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of the land, personally made no demand on the defendant to vacate the property until April 6, 1917, when he served a written notice requiring defendant to deliver possession within three days, under penalty of suit brought for possession and damages. Defendant refused to deliver and plaintiff instituted this action. On the trial it was developed that the land had not been summer-fallowed the previous year; consequently, there was no sum to which the lessee was entitled. Notwithstanding this fact, the defendant rested his case upon a motion for a nonsuit on the ground that the reservation in the lease, above quoted, required the plaintiff to exercise his right to take possession without any delay, and that by Ms waiting from January 22d to April 6th, he lost this right. The motion for nonsuit was granted, and plaintiff appealed from the judgment entered thereon.

On the appeal this court reversed the judgment, holding that the clause in the lease was intended by the parties to it to be a reservation in favor of, and for the benefit of, the lessor, and was to be so interpreted; and, consequently, as there had been no summer-fallowing of the land for the previous year, defendant’s lease was terminated upon the transfer of the land by the lessor to plaintiff, who was entitled to the possession of the property, upon his proper demand, whenever made.

(McVitty

v.