Leebrick v. Stahle

Reck J. I. The controling question in the case involves the existence of a lease under which defendant claims. The property in controversy is a store-house which defendant had occupied for several years under a lease executed by the owner, Mrs. Etteen, plaintiff’s grantor. The lease having expired, defendant claims that he had again rented the property of Mrs. Etteen for a term of years, prior to the sale and conveyance to plaintiff Plaintiff’ denies this, and blaims that defendant holds over after the expiration of the first lease. [517] i. vendok deenfSsasant' 'notice, [516] II. The evidence satisfactorily shows, or at least is sufficient to support the finding which we are authorized to presume was made by the district court, that Mrs. Etteen, before the sale and conveyance, had rented the property to defendant for a term of years by a written lease. The evidence shows that, on the tenth day of March, defendant rented the property of Mrs. Etteen through her agent, Fegan, who about that time delivered to plaintiff a written lease purporting to be signed by her. It appears that defendant regarded this instrument as a duplicate of the lea,se, and his counsel claim, while not denying that Mrs. Etteen did not write her signature thereto, which was done by Fegan, that he was authorized so to do, having full authority to rent the property and execute a lease therefor. We find it unnecessary to determine whether Fegan was authorized to execute the lease, for the reason that it is shown by the testimony that of Mrs. Etteen that before the conveyance to plaintiff she did sign a lease presented to her by Fegan', which clearly appears to be a duplicate of the instrument [517] given to defendant. This was some time after the instrument was delivered to defendant, and after Mrs. Etteen had contracted to sell the property to plaintiff, bnt before she had conveyed it to him. Upon this testimony the circuit court may well have found that defendant held as a tenant for a term of years under a written lease. The fact that Fegan had, before the execution of the lease by Mrs. Etteen, delivered to defendant an instrument which purported‘to be either a duplicate or a copy of the lease, and was so regarded by defendant, does not have the effect to avoid or defeat the lease after-wards signed by her. Mrs. Etteen made two written contracts for the sale of the property to plaintiff, both after defendant had received the duplicate or the copy of the lease. The lease was executed before the property was conveyed to defendant. Were the controversy for the possession of the property between Mrs. Etteen, no conveyance having been made by her, and defendant, there could be no question of defendant’s right to hold it tinder the lease. Plaintiff stands in no better position. Before he made the first contract with Mrs. Etteen, defendant had received the duplicate or copy of the lease, and claimed to hold it as a tenant for a term of years. lie proceeded at once to make improvements or repairs upon the property. His possession gave notice of the rights ■ he claimed, and plaintiff, upon inquiry of defendant, which prudence and duty both required, would have been informed that defendant claimed to hold the property under a lease. Plaintiff is charged with notice of- defendant’s rights. ■ We think, indeed that the evidence tends to show that plaintiff-had actual notice of defendant’s right before either the contract or the conveyance was made. He certainly had such notice before the last contract was entered into, and before the deed was executed. That contract provides that ho shall protect Mrs. Etteen against all claims of damages by the tenant, and shall defend for her any action that may be brought therefor, and he undertakes to be at all expenses [518] incurred in ejecting the tenants. Another significant circumstance is that the deed and the last contract were antedated, to show their execution before the lease to defendant was signed by Mrs. Etteen. The deed, or rather deeds, for she made two, were acknowledged on the twenty-second of March, and it is conceded that they were executed on that day, but it is shown in the body of the instruments that they were executed on the 13th. There is no direct evidence as to the day of the execution of the second contract. An inference may well be drawn that it was signed on the same day, but after the execution of the lease to defendant. These circumstances authorize the conclusion that plaintiff had actual knowledge of the rights of defendant under the lease. The expedient of antedating the instrument was intended as a protection against the enforcement of these rights. 2. EVIDENCE: secondary-011 error cured. III. Plaintiff objected to the introduction in evidence of the copy or duplicate of the lease to defendant. No grounds of objection are shown by the abstract, further J ^ ’ “iaa ^ was claimed to be “ incompetent.” Counsel for plaintiff now regards it, not as a duplicate, but a copy, and insist that it was erroneously admitted, for the. reason that'the existence of the original had not been proved and its absence accounted for by defendant. Assuming counsel’s position to be correct, that the existence of the lease should have been shown, and defendant’s inability to produce it proved, yet its admission is error without prejudice, for the reason that, during the progress of the trial, Mrs. Etteen, in her evidence on behalf of plaintiff, testified that she signed the lease and afterwards destroyed it. As it was thus shown that the lease was executed, and was not in existence at the time of the trial, no possible prejudice resulted to plaintiff by admitting the copy in evidence before the introduction of the proof of these facts. Other questions argued by counsel need not be considered, for the reason that the views we have presented are decisive of the case. The judgment of the circuit court is Affirmed.