Davis v. McGrew

Hayne, G. Suit to annul a lease from the defendant McGrew to the plaintiff, Davis.

Davis was the owner of an undivided interest in the San Pablo rancho, and was in possession of two parcels thereof, viz., one of 320 acres, called his “ home place,” and the other 45 acres, upon which latter he had growing crops of the value of one thousand dollars. McGrew claimed this latter piece, and applied to the superior court, in a case pending therein, for a writ of assistance to remove Davis from possession.

The court awarded the writ, for the purpose of placing McGrew in possession jointly with Davis. And the parties compromised the matter by Davis taking a lease from McGrew of the forty-five-acre tract for one year at an annual rent of five hundred dollars. This lease contained the following clause: “The lessee hereby expressly and absolutely waives and renounces any and all claim to title of any kind in himself in or to the premises herein described, other than the leasehold interest by this lease created.” As a part of the arrangement, it was agreed (although this latter part was not reduced to writing) that McGrew should waive all claim to the tract of 320 acres.

The suit was to have the lease canceled on the ground of fraudulent misrepresentations as to the effect of the decision in relation to the writ of assistance. And upon a former appeal, it was held that the complaint stated a cause of action. (Davis v. McGrew, 8 West C. Rep. 199.) Upon the return of the case to the court below, a new trial was had, and the court found that, there was no fraudulent misrepresentation, and rendered [137]judgment for the defendants, from which the plaintiff appeals.

It is contended that the finding referred to is not sustained by the evidence. But we think that there was evidence in its support sufficient at least to make a substantial conflict. Before signing the lease there was shown to Davis a letter from the judge of the court stating that the order was to place McGrew “ into joint possession with Davis.” And one Gift, a constable, who had misinformed Davis in the first instance, testified as follows: “ After seeing this letter from Judge Brown, I explained that his 320 acres was entirely free; that McGrew was to go into joint possession of the forty-five acres.” And McGrew testified as follows: “I read it [the letter] out loud, so it could be heard. Mr. Davis took it and looked at it, and Mr. Gift or Mr. Davis made the remark, that would make us partners in the land. Davis said: ‘I don’t want no partners; if you will give me what I paid for the barley I put in, and some potatoes that I planted, I will take you right out in my buggy and give you full possession of the land. I don’t want anybody in there but myself.’ I said: ‘No; you are a farmer, and have farming utensils. I have nothing. I am a blacksmith, and no farmer. You just continue on the land, and pay the rent that others have offered for it, and you can have it.’ ” He agreed to it, and consummated the bargain.