McGill v. Brown

FARRINGTON, J. From the action of the trial court in sustaining a demurrer to the petition the plaintiff prosecutes his appeal. The plaintiff alleges that he had entered into a lease on a farm with W. McF. Brown, deceased. That by the terms of the lease he was to furnish the labor and a portion of the expense, and Brown was to furnish the land and part of the expense. They owned the live stock jointly and were to divide the products of the land and the increase and products of the live stock. It is alleged that during the term of the lease Brown died and the land was sold under the foreclosure of a mortage. That the encumbrance was prior to the lease, and that by his eviction plaintiff was damaged for loss of the crops and increase in live stock as provided in the lease. The petition contains an allegation that the lease “did not covenant against the conditions broken. ’ ’ Just what is meant by the last allegation we are at a loss to know *404 except it be that said Brown, the.lessor, did not covenant against a foreclosure of the mortgage, and if that be the meaning then no liability could arise from such foreclosure. The suit is against the Administratrix of Brown’s estate and seeks to recover damages for the breach of the lease. We do not think the petition states a good cause of action; first, because the lease was in the nature of a partnership agreement to carry on a farming business, and of course the death of one of the partners terminates the agreement. Such leases as this are held to create a partnership. [24 Cyc, 1466 and 1467.] Again, it is held that the foreclosure of demised premises antedating the lease terminates the lease. [24 Cyc, 1341.] 1 Tiffany on Landlord & Tenant, page 408, lays down the rule that a tenant takes subject to the encumbrances of which he has actual or constructive knowledge. There is no allegation of want of knowledge pleaded in the petition. While the lease in this case bound the executors and administrators of the plaintiff, it only bound the heirs and assigns of the lessor, Brown. The petition failed to state 'a cause of action against this defendant, and the court very properly sustained the demurrer. The judgment is affirmed. Cox, P. J., and Bradley, J., concur.