Phelan v. Anderson

GAEOTJTTE, J. This is an action of ejectment, brought by the executrix in the interest of the estate of Martin Phelan, deceased. An appeal is prosecuted from the judgment and order denying plaintiff’s motion for a new trial. The case was tried by a jury. Title is admitted in plaintiff, and defendant claims a right of possession under a lease. There are various controverted facts disclosed by the record, but, in view of the verdict of the jury, we are bound to assume those facts in favor of defendant. Defendant’s evidence was to the effect that upon November 1, 1891, plaintiff, by oral agreement, leased to him the land in dispute for the term of five year's, at the yearly rental of six hundred dollars; that under such agreement he entered into possession of the land, and before the bringing of this action had fully paid to plaintiff the rent for the aforesaid five years. This action was begun in March, 1896.

The parol lease for five years under which defendant entered was void, and no rights were fixed by it, but, when an entry is [506]made under such a lease;, all tbe authorities agree that the tenant holds either by tenancy at will or from month to month or from year to year. If the land is agricultural land and the rent is to be paid annually and in fact is paid to the lessor and accepted by him as annual rent, then beyond doubt the conclusion may well be declared by judge or jury that the holding is one from year to year. (See Couderl v. Cohn, 118 N. Y. 309; 16 Am. St. Rep. 761; Talamo v. Spitzmiller, 120 N. Y. 37; 17 Am. St. Rep. 607; Rosenblat v. Perkins, 18 Or. 156.) In the present case it is claimed by defendant that prior to November[1], 1895, he paid to plaintiff the six hundred dollars due for the year ending November 1, 1896. If the lessor received the rent for that year from the lessee, then the holding of the lessee for that time could not be disturbed, and the plaintiff had no right of action when this litigation was inaugurated. The evidence upon this question was directly conflicting, and the verdict of the jury as to the fact must be held controlling by this court.

It is insisted by appellant that she had no power to rent the premises without the consent of the court in which the administration was pending, and that for such reason her lessee was not entitled to possession. We axe.not prepared to hold that an executor may receive the rent from the lessee upon a lease from year to year, the lessee enter into possession under the lease, and thereafter the lessor oust the lessee from such possession for the reason urged. If it be conceded that the court should have refused to admit in evidence the statements contained in a pleading of plaintiff filed in another action, still we find no error prejudicial to plaintiff in such ruling. That pleading contained the statement that she, plaintiff, was the owner of this land in her own right, while it is now conceded upon both sides that the administration has not yet been finally concluded and distribution had. All other statements contained in the pleading offered tend to bear out plaintiff’s testimony given at the present trial, rather than contradict it.