Gunn v. Pollock

The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.

By an agreement between the parties, the defendants entered into the [241]possession of a tract of land claimed by the plaintiff under a Mexican grant, upon the conditions that he was not to pay any rent for two years, and if the title was confirmed in that time, he was to give up his improvements ; but if not confirmed in two years, the defendant was to remain on until it was confirmed, with the privilege of buying it in case of sale. It was further agreed, that if the title was not confirmed, the defendant was to hold it as public land.

In August, 1853, some two years after his entry, the defendant filed his notice, claiming title to the land in dispute, under the Possessory Act of this State, thereby terminating his tenancy, disclaiming his landlord’s title, and setting up ownership in himself.

On the trial the defendants offered to prove the value of the improvements, both before and after November, 1853, which evidence was excluded, and the Court instructed the jury that if they found for the plaintiff, they should, in estimating the damages, allow the rent of the premises from November 1st, 1853.

We are satisfied that both, rulings are correct. The improvements of the first two years were substituted as payment for rent, provided the title was confirmed in that time. At the expiration of that period, the defendant abandoned the contract, and terminated the tenancy. Any improvements made afterward were at his own risk, and having terminated the agreement, he was chargeable for rent thereafter accruing.

Judgment affirmed.