Sass v. Thomas

HOOK, Circuit Judge, after stating the case as above, delivered the opinion ..of the court. If a tenant repudiate his tenancy, deny tlie title of his landlord, and assert title in himself, may the-landlord at once commence and maintain an action.in unlawful detainer without awaiting the expiration of'the term of the lease? In Willison v. Watkins, 3 Pet. (U. S.) 42, 7 L. Ed. 596, it was held that, when a tenant repudiates his tenure and claims adversely to his landlord, his term at once comes to an end; that his possession is then as much the subject of action by the landlord as. a possession originally acquired by wrong; that the relation of landlord and tenant is dissolved and each party is thenceforth to stand upon his own right. Though that,was a .case of trespass to try title in which it appeared that the statute- of limitations had run against the landlord after the repudiation by the tenant, the principle declared is fully applicable to - the case at ■ bar. ■ There is nothing exceptional or peculiar about thé 'relation existing between landlord and tenant that prevents them from putting an end to it at any time though the term originally fixed may still endure. The legal consequences of acts committed are as effectual for that purpose as the formal convention of the parties. When one having obtained possession as a tenant disclaims holding as' süch and denies .the title of his landlord, he has broken the tenure and his term has come to an end. It is then his duty to surrender the property, and, failing to do s.o, the remedy of the landlord to sue in unlawful detainer is as available as it would be in case of holding over after the natural expiration of the contract term. Tobin v. Young, 124 Ind. 507, 24 N. E. 121; Buckner v. Warren, 41 Ark. 532; Barnewell v. Stephens, 38 So. 662, 142 Ala. 609; Fusselman v. Worthington, 14 Ill. 135; Wall v. Goodenough, 16 Ill. 415; Doty v. Burdick, 83 Ill. 473; Douglass v. Anderson, 32 Kan. 353, 4 Pac. 283. That Sass & Crawford disclaimed the ,tenanc)r, denied the title of Mrs. Thomas, and asserted title, in themselves stood admitted upon the face of the complaint and answer. There being no issue raised, no evidence concerning the matter was necessary and judgment could well have followed itpon the pleadings.. Another question was presented and elaborately argued. When a defendant in an action at law puts forward as a defense a written instrument executed by the plaintiff, may the latter overthrow it by proof that his signature was obtained by false and fraudulent representations as to the character of the instrument, though there is no averment thereof in his complaint? In other words, may the attack upon the writing executed under such circumstances be deferred until rights are asserted under it in an action at law, or must the aid of a court of equity be sought for its cancellation ? The conclusion reached upon the other feature of the case is sufficient for its disposition. , . . . ... The judgment is affirmed.