Simons v. Marshall

Opinion by

Greene, J.

This was an action of unlawful detainer by S. T. Marshall against A. TI. Simons and G. W. Turner to recover possession of a house and lot in Keokuk. The complaint was filed before a j ustice of the peace *503in the usual form-. The venue was twice changed, aild the cause finally submitted to a jury, who returned a verdict in favor of the plaintiff, and judgment was rendered accordingly.

The defendant took an appeal to the district court where judgment was again rendered against the defendants. On the trial many exceptions were taken to the instructions and íulings of the court Which are now urged as error.

1. A number of the errors assigned are in relation to the form of the complaiht, but as it seems to be in substantial Conformity to the statute, and contains all the material averments required, we think the objections uiged are not Well founded and were very properly overruled by the court. It was decided by this court in Shaw v. Jordan, 2 G. Greene, 376, that such a complaint is.good where it contains all the averments of facts required by statute.

2. It is objected that there was error in admitting the lease which was signed “A. II. Simons and E. II. Turner,” in evidence against G. W. Turner, and in admitting parole evidence to show that said G. W. Turnér was the person Who signed the lease as E. II. Turner. In support of this -objection the principle is advanced that it is not competent to alter or vary an instrument under seal by parole evidence. But how was that instrument varied or changed by the proof offered ? There was no change made to any term, condition or obligation in the lease. The proof only identifies one of the parties who signed the lease as being one of the parties in wrongful possession. The fact that he did not sign his trite name would not release him from the obligation created by the fact that ho did sign as lessee, and went into possession under the lease. He could not justify a wrongful holding over by his own misnomer. A party cannot thus take advantage of his own wrong.

3. It is objected that the time for which the premises were let had not expired. The lease stipulated that the tenaiits “'deliver the said house up to said S. T. Marshall at any *504time on demand, in case the rent is not paid in advance' Waiving all process at law.” The bill of exceptions shows that the tenants had failed to pay the rent, and that they had forfeited all rights under the lease. The principal condilion upon which they were to retain possession,was the payment of rent monthly in advance. A failure to so pay' the rent forfeited their right of possession.

L. E. H- Houghton, for plaintiff in error.

J. O. Hall, for defendant.

4. All the other errors assigned are involved in the question — Cana tenant deny his landlord’s title? As a general rule it is conceded that a landlord’s title cannot be disputed hy his tenant but it is urged that this case is an exception to that rule. And why an exception ? Because, it is said, there was fraud exercised in obtaining the written lease ; that the landlord pretended to have legal title when in fact he had no such title. This amounts to nothing more than ¡an attempt to dispute his title without attempting to show that the title which they acknowledged had terminated •either by conveyance or operation of law, and was vested in them.

The fact that the court did. not permit that defendant helow to show fraud in the lease was not erroneous, even if the matter of fraud did not involve the question of title. Fraud in the lease will not justify an unlawful detainer, íhey first attempt to justify their possession under the lease <on the ground that the term had not expired, and then (claim that the same lease was fraudulent. If fraudulent and void they, of course, could claim no rights under it, nor Would that fact warrant them in holding over. One wrong Oanrot be thus warranted by another. We conclude then (that fraud in the execution of a lease cannot be set up by the tenants in justification of an unlawful detainer of the' premises.

Judgment affirmed.