Conner v. Jones

By the Court,

Currey, J. The parties entered into an agreement on the 22d of October, 1860, by which the plaintiff leased to the defendants certain premises at a certain rent reserved, for the term of one year from the date thereof, with the privilege to the defendants of a renewal of the lease for one year longer on the same conditions, with the right to remove from the premises at the expiration of the term of the leasehold all the buildings and improvements before then erected thereon, unless the plaintiff should pay for the same—and it was further provided by the agreement that the plaintiff should not enter and take possession of the premises at the expiration of the second year, except on payment to the defendants of the value of all the improvements they might put or cause to be put on the premises after the date of the lease. It was stipulated that the [61]value of such improvements should be determined by two persons, one of whom should be nominated by the plaintiff and the other by the defendant, and in case of the disagreement of the persons so named, they were to select a third. The agreement of two of the three persons so selected, it was provided, should be binding on the parties. It was further agreed that the plaintiff should give to the defendants at least thirty days notice of his intention to take possession of the premises at the expiration of the second year, and on failure to do so, the defendants were at liberty to renew the lease until the foregoing conditions should be fully complied with by the plaintiff.

Sometime in the year 1863, after the 20th of May, but at what particular time the record does not show, the plaintiff commenced an action in a Justice’s Court, under the Act concerning forcible entries and unlawful detainers, for the purpose of obtaining possession of the demised premises. The complaint contains allegations of the performance of the conditions entitling him to the possession of the premises and of a refusal of the defendants to surrender the possession of the same, according to the agreement on their part so to do. The defendants controverted the material averments of the complaint. The cause was tried before the Justice and a jury, and judgment was rendered for the plaintiff The defendants appealed to the County Court, and judgment was again rendered for the plaintiff The defendants then moved for a new trial, which was denied, and from the judgment and order an appeal was taken to this Court.

From the record it appears that on the 10th of April, 1863, the plaintiff gave to the defendants a notice in writing informing them that the lease had expired, according to its terms, and demanding that they surrender to him possession of the premises within thirty days thereafter. That he declined purchasing or paying for any improvements put pn the premises prior to the date of the lease;, and requiring them to remove the same within thirty days. That he had selected and appointed a certain person as referee to ascertain and value the improve