Zeigler v. Lexington Compress & Oil Mill Co.

63 So. 220, 105 Miss. 820

• Court: Mississippi Supreme Court
• Decided: October 15, 1913
• Status: Published

Opinion

Cook, J.,

delivered the opinion of the court.

Appellants, husband and wife, occupied as a homestead a certain tract of land. The husband leased a part of the land to appellee for a term of two years, but the wife did not sign the lease.

It is stated in the bill of complaint filed by the appellants that the purpose of the husband in executing the lease was to obtain for his community a first-class system gin outfit; that the rental of the land was the nominal sum of one dollar, but the real consideration was expressed in this clause of the lease, viz.: “It is understood and agreed that the said Lexington Compress & Oil Mill Company may have the privilege of extension of this lease at expiration of one specified. Said land is to be used by lessees as a location for ginning and Cotton seed handling purposes.” From the bill we learn that the ginning plant was erected and the business was conducted for five years, when the ginhouse was destroyed by fire, but the seed house was not burned. After the fire, ap-pellee, after collecting full insurance, removed all the machinery, which was only slightly damaged, to the “Delta,’’and refused to further occupy the property and continue the business as it had agreed to do.

After the removal of the machinery and discontinuance of the business, appellants endeavored to persuade the appellee to rebuild the plant and continue the business, which they refused to do for two years. After this refusal to continue the business, appellants took possession of a certain cotton seed shed, which it is alleged was erected in part on land of appellants not embraced in the lease, and were using same as a hay barn, when it is alleged appellees were conspiring to go npon the land for the purpose of tearing down and removing the building.

The foregoing is the case made by the bill of complaint, and the prayer was for an injunction to restrain appel-lees from entering the premises to destroy and remove the building. A demurrer was interposed to this bill, and was sustained by the court.

Did the tenant have the right to remove the building at any time before the expiration of the lease? If this should be answered in the affirmative, does the bill allege a state of facts showing that appellee had surrendered possession; and by refusing for two years to con tinue the operation of the plant did appellee thereby abandon and forfeit its right of re-entry and removal of the building?

The demurrer admits the allegations of the bill, and we think the bill establishes an abandonment and forfeiture of the lease. It is fairly deducible from the bill that appellee undertook to erect a gin and cotton seed handling plant and use the land for this purpose alone, and when it moved its plant and for two years refused to use the land for the purpose intended it thereby forfeited all further rights to go upon the land. It may be conceded, so far as this case is concerned, that appellant, when the fire occurred had the right to remove the building within a reasonable time thereafter; but when it abandoned the possession of the land for two years, and' refused longer to use the same for the conduct of the business, this can only be construed as a surrender of the lease. This being true, the building being a part of the freehold, the title to same vested in the owners of the soil.

Reversed cmd remanded.