Jones v. Cooley

Given, J. I. The defendant leased the land, then wild and unimproved, from the owner, William Strieker, for five years from March 1, 1886, under a written contract which provided that defendant should pay the taxes for the use of the same, “and to build a good and substantial fenco enclosing said land, and at the end of his lease the said William Strieker should have the option of purchasing the-said fence at its reasonable value, and, if he elected not to-purchase the same, then the defendant was to have the privilege of removing the same, the fence to remain his property until purchased by said Strieker.” William Strieker died testate, his will providing for the sale of the land by his, executor. About the twenty-seventh day of March, 1891, an agreement was concluded between the plaintiff and the167 executor by which plaintiff purchased the land for four-thousand six hundred dollars, he also agreeing to pay eighteen dollars and twenty-one cents taxes then due for the previous year, and which taxes the plaintiff then paid. This action was commenced on the seventeenth day of April, 1891, and in September following the four thousand six hundred dollars-was paid. Defendant fenced the land and paid the taxes as. he had agreed to do, and continued to occupy the land under the contract up to the time the plaintiff purchased it. There-is a conflict in the evidence as to whether plaintiff knew of the defendant’s claim to the fence at the time he made the-contract of purchase. We think the weight of the evidence-is in favor of the conclusion that he did have such knowledge,, but, be that as it may, it is clear that he had that knowledge before he paid the four thousand six hundred dollars, as this action was commenced April 11, 1891. II. By the contract the fence was to remain the property of defendant, with the privilege of removing the same, “until purchased by said Strieker.” Strieker did not purchase it; hence the ownership and right of removal remained in the defendant. Plaintiff did know of defendant’s owm - ership of the fence and his right to remove it when he paid ‘the four thousand six hundred dollars, and could have protected himself to the extent of the value of the fence at that time, if, under his contract of purchase, he was entitled to do so. The judgment of the district court is correct, and is. Al-riURMED.