Davis v. Schweikert

COOPER, C. Action to recover twelve hundred dollars damages. The case was tried before a jury and a verdict returned for plaintiff in the sum of four hundred dollars. This appeal is from the judgment and an order denying defendants* motion for a new trial. The facts concerning which there is . no controversy are substantially as follows: The defendants are and were at all times named in the pleadings husband and wife. On the twenty-eighth day of October, 1895, the defendant Albert Schweikert executed and delivered to plaintiff a written lease of the premises described in the complaint for the term of five years from the date of the lease, upon the terms and conditions therein set forth. The ' lease contained the following covenant: "And it is further understood and agreed by and between the parties hereto that, in case the said party of the first part should sell the property herein described at any time during the term of this lease, then the party of the second part shall yield possession and deliver up the within described premises to the party of the first part.” The plaintiff immediately entered into possession under the lease and continued in possession for about one year. It is not claimed that the plaintiff failed in any respect to perform the covenants of the lease on his part, nor that' he for any reason forfeited the lease. *147 On the eighth day of October, 1896, the defendant Albert Schweikert executed and delivered to his codefendant a deed -of the leased premises for the nominal consideration of six thousand dollars. After this deed was made and recorded, and before the expiration of the lease, the defendant M. B. Schweikert went in person to plaintiff and told him that she had bought the place and paid for it with her own money, and that she wanted possession. The plaintiff relied upon the statement so made to him, and at the end of his first year delivered up possession and vacated the premises. The amount of the verdict is- conceded to be correct according to the evidence because it is not challenged. It is alleged in the complaint that the property was not in fact sold by defendant Albert Schweikert to his codefendant, but that the deed was sham and fraudulent •and made with the intent and purpose of deceiving the plaintiff and regaining the possession of the leased premises. It is •claimed that this allegation of the complaint is not supported by the evidence, and this is the main and controlling question in the case. The lease conveyed to plaintiff the premises for the term of five years, subject to the condition expressly written in the lease that it should terminate upon the property being sold by the lessor. The covenant must be understood as meaning an actual Iona fide sale, and not a fraudulent one. It was not contemplated—or at least, the law does not contemplate—that the lessor could by a pretended fraudulent sale, made for the very purpose of defeating his lessee of his estate, avoid the lease and thus take advantage of his own wrong. The plaintiff therefore, having a conveyance subject to be defeated upon condition, is entitled and was entitled to the estate so conveyed, unless the defendant could and did show that the conveyance was made in good faith and was such conveyance as contemplated in the lease. We think the evidence is •amply sufficient to sustain the verdict. The witness F. H. Seavey testified that in August, 1896, the defendant Albert Schweikert told him that they could not put up with plaintiff any longer and that he could get possession by transferring or selling the property, and that he was going to transfer it to his wife to get rid of plaintiff. The witness further testified that about the 1st of October, 1896, the defendant Albert *148 Schweikert said to witness in the presence of witness’ wife that he was going to get rid of plaintiff. That he asked him how he could do it, and he said “he could as sure as the sun shines.” This last statement was also testified to by Mrs. F. H. Seavey. The witness further testified that he was boarding with defendants in December, 1896, and the subject of getting plaintiff off the place was brought up at the supper table, and defendants said that plaintiff “thought he had a fat thing, but they fooled him.” That defendant M. E. Schweikert said “they had transferred the property to get rid of Dixie and his lease.” Mrs. Seavey testified that Mrs. Schweikert told her that according to the lease they could only get rid of plaintiff in one way, and that was to sell, and that she had bought the place, and her purpose in buying was to get plaintiff off. Another witness for plaintiff testified that he heard defendants laughing about how they had played plaintiff, and that defendant Albert said “he had transferred it to his wife for the purpose of getting Dixie Davis off, he gave me to understand that; his wife heard it, she spoke about it and laughed.” The witness Ha}^ testified that in November, 1897, the defendant told him that he became tired of the way plaintiff ran the place, that it was in the lease that if he sold plaintiff had to give it up, “and so he sold it to his wife.” The defendants were both witnesses in their own behalf, and neither of them testified as to the true consideration for the deed, nor that it was made in good faith, nor did they or either of them state anything concerning its object and purpose. We cannot disturb the verdict on the evidence. If the evidence is true the delivery of the possession to Mrs. Schweikert was delivery to her codefendant. The court correctly gave the first and second instructions asked by plaintiff. The evidence hereinbefore recited was sufficient to justify the court in submitting the questions as to fraud, conspiracy, and the consideration for the deed to the jury. The evidence was sufficient upon which to predicate the instructions. The third instruction asked by plaintiff was correct. It did not assume or state a fact to the jury, but only a principle of law as applied to the rights of plaintiff. The court did not err in" modifying the fourth instruction asked by defendant. *149 The defendant requested the court to instruct the jury as follows: “5. I instruct you that if you believe from the evidence that one of the objects of the conveyance from Albert ■Schweikert to M. E. Schweikert, of the land leased to the .plaintiff, was that he might be deprived of the possession thereof under his lease, that fact, of itself, does not entitle him to a verdict in this case.” The court modified the instruction by adding to it: “If you find that said conveyance was made in good faith.” The modification was proper. If the conveyance was not made in .good faith, and one of its objects was to deprive plaintiff of the possession under his lease, the plaintiff would be entitled to a verdict under the admissions made in this record. We advise that the judgment and order be affirmed. Gray, C., and Haynes, C., concurred. For the reasons given in the foregoing opinion the judgment •and order are affirmed. Garoutte, J., Van Dyke, J., Harrison, J.