Du Rette v. Miller

Opinion by Mr. Chief Justice Eakin. 1, 2. All the lessors who signed the lease acquiesced in the delivery of it to plaintiff, and if it is not binding on those not signing it, yet it operates to transfer to plaintiff the possession and right in the property for the term of the lease by those executing it, and thereby plaintiff became the tenant in common with the other [94] owners. As the partition was made after the lease was executed, it was made subject to the lease as to all who signed it. Mrs. Miller cannot forfeit the lease for a breach of its terms. That can only be done by the lessors, or in a suit to which they are parties. Nor is a forfeiture alleged or relied on in the answer. The breach is only alleged as a circumstance leading to the surrender. 3. Therefore the only question for consideration is whether plaintiff surrendered the 120-acre tract, being the north field, which defendants contend was surrendered, as well as the 100-acre tract, by the letter of May 11, 1909; whereas, plaintiff denies that he surrendered it. The fact that the 100-acre tract was assigned to Mrs. Miller more than two months before the letter was written, and that the letter mentions the land surrendered as “your land,” making no reference to the lease or the other land, it must be held to refer to the 100-acre tract. The lease does not provide for a crop for the year 1908, and the 120-acre tract was being cropped by plaintiff in 1909. The letter purported to be a present surrender, “so you can arrange for summer-fallow,” showing that it could not have had reference to the 120-acre tract. 4. Neither could plaintiff have surrendered it to Mrs. Miller to bind the other owners of that tract, or to release him from liability to them. The 100-acre tract was the only land he could surrender to her alone, and we conclude that, not only by the language of the letter, but by the light of all the surrounding circumstances, plaintiff did not surrender the 120-acre tract. By the terms of the lease, plaintiff had exclusive use of the land as against those signing it, and the action of defendants, in attempting to take possession and turn stock upon it was without right, and we find no error in the decree of the court. Affirmed.