McClain v. Doe on demise of Malone

5 Ind. 237

• Court: Indiana Supreme Court
• Decided: June 9, 1854
• Status: Published

Opinion

Stuart, J.

Ejectment by Isaac Malone against McClain, for a tract of land in Hendricks county. Judgment for Malone.

Malone introduced in evidence patents from the United States to him covering the land in controversy. He also introduced a written lease under seal, dated February 4, 1850, made by John Malone and James Me Clain for the same land. Among other things, it is stipulated in the lease that Me Clain will “leave the premises, if requested, on the first of March, 1850, in good repair and clear of all incumbrance.” The lease is signed and sealed by John Malone. In the introductory part he describes himself as the agent of Isaac Malone.

It is objected that this is the lease of John and not of Isaac Malone; and that as John had no title, the lease was void and the use and occupation of Me Clain operated as a tenancy from year to year, entitling him to three months’ notice to quit under the statute. R. S. 1843, pp. 441 and 817.

In support of the first objection' we are referred to Deming v. Bullitt, 1 Blackf. 241 and note. The facts of that case are not reported; but the doctrine held is not favorable to Me Claims position. The lease was unquestionably the deed of Me Clain; and also of Isaac Malone, if he chose to to adopt it. By permitting Me Clain to enter and occupy under the lease, and offering that instrument in evidence as a link in the chain to show his right of possession, Isaac Malone did adopt and confirm the act of his agent John. Me Clain was estopped by the recitals in the lease itself, at least so far as the question arose in this case, from denying that John was the agent of Isaac. Had Isaac repudiated the lease and the authority of John to make it, and turned McClain out of possession before the expiration of the term, then, in the language of Deming v. Bullitt, John Malone would have been “personally and alone responsible.” In a suit by McClain against John Malone, under such circumstances, the case of Norton v. Herron, and the other cases cited in the note, 1 Blackf. 243, would have been exactly in point. But the facts of this case present an entirely different question. It can not be seriously doubted but that Isaac Malone had a right to adopt the acts of his agent as his own, if he saw proper. The course pursued is, we think, in substance such adoption.

H. Brown and A. G. Porter, for the plaintiff. C. C. Nave, for the defendant.

McClain being in under the lease, the only remaining question is, was he entitled to written notice to quit? The lease was for a definite period, at which time he was to leave if required. We are of opinion that written notice three months before the first of March, 1850, is not required by the terms of the lease. A further tenancy from year to year, on the same terms, was clearly not in the contemplation of the parties.

Per Curiam. — The judgment is affirmed with costs.