Bandmann v. Davis

ON MOTION FOR REHEARING.

The earnestness with which counsel for the defendant have pressed the motion for a rehearing has induced us to reexamine the record and again consider their various assignments of alleged error. Further deliberation has served only to strengthen the conclusion announced in the former opinion. That the contract which was the subject of the action is not a lease is apparent; but, if it were a lease, the evidence offered by the defendant would, if received (and in his abstract he treats it as proof adduced), have been conclusive against him; for the plaintiff was ousted from the possession of the property let by the defendant to him by one Cook, who had title under a sheriff’s deed to the property, issued after a sale under a money judgment in his favor, which judgment had been duly docketed and was a lien prior to the inception of any right in the defendant to take possession. True, the defendant held a mortgage from the then owner of the real property which antedated the docketed judgment, but the mortgage was in the common form and contained nothing authorizing new dealings or agreements which would affect a lien subsequently acquired; and the lien by judgment, although inferior to the lien of the mortgage held by the defendant, attached prior to the making of the new agreement between the defendant and the mortgagor. It is plain that Cook was the owner of the real estate at the time he ousted the plaintiff therefrom, his ownership being subject to the defendant’s *386mortgage; and that the defendant is liable to the plaintiff for the breach of the covenant of peaceable possession and quiet enjoyment, implied in the lease.

One of the causes of action is not separately stated and numbered, and is not as well averred as it might have been; the objections urged at the trial'to the reception of evidence under it were that one of the causes alleged in the complaint arose ex delicto, whereas the other arose ex contractu, and was not separately stated and numbered. A motion to exclude evidence, or an objection to receiving it, is- not the remedy for the intermingling in one count of several causes of action; nor is there remedy other than demurrer, by which the complaint may be attacked upon the ground that causes of action are improperly united therein. Moreover, each cause of action arose out of the same contract, and they were such as may properly be united in the same complaint. In this Court the defendant urges, in addition to the objections made below, that the statement so attacked is insufficient in substance to constitute a cause of action. As has been said, it might have been better draughted, but it is an example of the defective statement of a cause of action, and not of a defective cause of action alleged.

If we assume that it was the duty of the defendant to prevent damage to his crops and trees if he could do so by a trifling expense, the position of the defendant is not bettered, for the reason that the evidence tended to show that the plaintiff made reasonable but unsuccessful efforts to obtain water, and the charge of the court upon this point, as well as upon the whole case, was at least as favorable to the defendant as the law warrants.

No error prejudicial to the defendant was committed, and the motion for a rehearing is denied.

Denied.