Dineen v. Olson

The opinion of the court was delivered by Graves, J.: The plaintiff in error insists that his contract with the railroad company is not a lease, but a contract for the purchase of real estate, and that [385] therefore the justice of the peace before whom the action was commenced did not have jurisdiction of the subject-matter involved therein. The claim in this respect is clearly and tersely stated in his brief, as follows : “As to whether the above and foregoing contract is a contract of purchase or a contract of lease depends, as we believe, the correctness or incorrectness of the ruling of the district court in this case. It seems to us that it is clearly a contract of purchase, and not a contract of lease; and it cannot be both. It must be one or the other.” We do not deem it necessary to gike this paper a name. Its provisions state the rights and duties of the parties thereunder, and present the only questions to be considered. Justice will probably be better sub-served by treating this exhibit as an ordinary written contract, containing the stipulations and agreements of the parties thereto, than by attempting to assign it to a place in the technical classification of legal instruments by determining which of them it most resembles. The parties refer to this paper in their briefs as a contract, and for convenience it will be so designated here. It is conceded that whatever right plaintiff in error may have to the possession of the land in controversy is derived from this contract. By the covenants of such contract he agreed that in case of failure on his part to comply with its provisions his right to the possession of the premises should cease at once, and all payments which had been made by him should be retained as rent for the prior use of the property. The agreed statement of facts shows that he failed to comply with his agreements in-the contract on April 14, 1902, by refusing to make the payment then due. He has ever since remained in default. On January 21, 1904, he was notified that the contract was at an end. No payment or offer to pay has been made since April 14, 1901. This action was commenced May 16, 1904. The ag [386] gregate amount paid by Dineen is $258.72. He had been in possession two years at the time of default. When this action was commenced he had been in possession more than four years. The aggregate amount paid, from the time he went into possession to the date of default, if applied as rent, would be less than eighty 'cents an acre annually, and, for the whole period of occupancy prior to the commencement of this action, less than forty cents an acre annually. It is not claimed that an injustice will be done to Dineen by compelling him to surrender possession of the land, nor that he has any meritorious defense to a proper action brought for that purpose. It is simply insisted that he has a legal right to stay there until ousted according to the strict letter of the law. It may be conceded that an action of forcible detainer is strictly possessory in its character, that the plaintiff must have a perfect right to possession qt the time the notice to quit is given, and that when such an action is pending before a justice of the peace — a court without equitable jurisdiction or power — it must be determined as an action at law. (Kellogg v. Lewis, 28 Kan. 535; Gilmore v. Asbury, 64 Kan. 383, 67 Pac. 864.) But for the purpose of determining the right of possession, questions of title, legal or equitable, may be incidentally considered. (Conaway v. Gore, 27 Kan. 122; McClain v. Jones, 60 Kan. 639, 57 Pac. 500.) In the case of Conaway v. Gore, supra, which was an action of this nature, Mr. Justice Brewer, who delivered the opinion of the court, used the following language: “It is true, as the court charged the jury, that questions of title are not to be litigated in actions of this nature. The question is simply one of the unlawful and forcible disturbance or withholding of possession ; and yet, as we shall see hereafter, evidences of title are often properly received in evidence, and questions of title may often be considered and have an important bearing upon the final decision. Indeed,' cases may arise under our statute where the plaintiff may rest his entire right of recovery upon mere proof of title.” (Page 126.) • [387] The plaintiff may always recover in an action of forcible detainer if he is entitled to possession and the defendant has no legal or equitable interest in the land. In the case of Douglas v. Anderson, 28 Kan. 262, it was held that, where a tenant stipulated in a lease that upon failure to pay rent the lessor might enter and take possession, upon default the landlord might recover possession by an action of forcible detainer. The provisions of the contract between Dineen and the railroad company contain the measure and limit of the rights acquired by him to the land thereiq described. By the terms of the contract he expressly agreed to quit the premises and deliver back the possession thereof in case of default by him in the performance of any of his agreements. It is admitted that he made default, and no cause or excuse is offered therefor. We can see no reason why he should not be held to this agreement. Upon the agreed facts he has no right,- legal or equitable, remaining in the land, and does not claim to have. His right to possession has ended by reason of the breach of his own deliberate contract. The question whether a justice of the peace has equitable jurisdiction is immaterial, as nothing of an equitable nature is presented here to challenge such jurisdiction. The court was clearly right in holding that under the admitted facts the right of Dineen to remain in possession was at an end. If outside of the question of' possession he has rights concerning crops, improvements, or of any other nature, they can be adjusted in any appropriate proceeding without embarrassment on account of this judgment, as it is not a bar to any after-action brought by either party. (Gen. Stat. 1901, § 5396; Waite v. Teeters, 36 Kan. 604, 14 Pac. 146.) The judgment of the district court is affirmed. All the Justices concurring.