#### J. C. VINCENT, Appellant, v. REYNOLDS FARMERS ELEVATOR COMPANY, a Corporation, Respondent.

(208 N. W. 158.)

Appeal and error — trial court’s findings — when presumed to he correct.

1. The findings of the trial court in an action not triable de novo are, *on*appeal, presumed to be correct unless clearly opposed to the preponderance of the evidence.

Landlord and tenant — trial court’s findings that there was no conversion^ supported by evidence.

2. For reasons stated in the opinion it is held that the findings of the triaB court have substantial support in the evidence, to the effect that the complaining landlord did not reserve title to the crop which his tenant Hodson soldi the defendant, and that there was, therefore, no conversion.

Opinion filed March 12, 1926.

Appeal and Error, 4 C. J. 2722 p. 775 n. 26; § 2727 p. 777 n. 62. Landlord and Tenant, 35 C. J. § 166 p. 1029 n. 55 New; 36 C. J. § 1510 p. 514 n. 35 New; § 1520 p. 517 n. 97.

Note.— (1) Verdict of trial court not disturbed on appeal where there is substantial evidence tending to support it, see 2 R. O. L. 194; 1 R. C. L. Supp. 432; 4 R. C. L. Supp. 90; 5 R. C. L. Supp. 80; 6 R. C. L. Supp. 73.

*750Appeal from tbe District Court of Grand Dorks County, Cooley, J.

Affirmed.

*llicha/r’dson, Creen & Wuttam,*for appellant.

To grant the lessor an option in case a tenant held over, of either treating him as a trespasser, or by holding him as a tenant under the terms of the former lease. The tenant has no such option. The option is entirely with the lessor. Mer. Bank v. Ruettell, 97 N. W. 853.

The proposition that the burden of proof is on the respondent to show that a new lease was entered into in the place of a continuance of the former lease is supported by the decision of this court in case of McKenzie v. Hopkins, 150 N. W. 881.

Where a lessee continues in possession with no alteration in the agreement save an increase in the rent, he becomes a tenant for another year ■which the law implies to bo upon the same terms under which the premises were held the preceding year. Zipper v. Reppy, 25 Pac. 164; 35 ,<C. *J.*1027.

*O’Connor & Peterson,*for respondent.

If the parties specify the rent, the time of payments, the term, or any of the usual covenants or conditions of a lease whether they agree or disagree with the terms of the former lease, they enter into a new lease, and determine the rights of the parties while the tenant is holding over. Blumenberg v. Myres, 32 Cal. 93, 91 Am. Dec. 560.

Whether or not there was a new contract is a question of fact. Weber

Powers, 215 Ill. 370, 72 N. E. 1070.

JonNSON, J.

In May, 1923, the plaintiff purchased a quarter section of land from one Thon. At the time of the conveyance, the premises wore occupied by one Hodson, under a written lease from the grantor, Thon. By limitation in the lease, the tenancy expired on March 1, 1924. Lessee Ilodson agreed to pay Thon a cash rental of $4.50 per acre, and as security for the performance of the conditions of the contract and payment of the cash rental, the lessor reserved title to the crop. On May 5, 1923, Thon assigned to one Schulstad all his arights and interests in the lease in and for the year 1923. Thon was at the time of the assignment, a resident of Crookston, Minn., and the assignee was a resident of Reynolds, North Dakota. Plaintiff knew jthat the lease and all the interests of the lessor thereunder had been as*751signed to Schnlstad. Under the arrangement among these parties the plaintiff claimed no interest in tbe crop raised during the season of 1923.

Hodson remained in possession of the land during 1924, planting and harvesting a crop thereon. A portion of this crop he sold to the defendant at Reynolds. Thereafter the-'plaintiff, claiming that title to all the •crop was reserved in himself as security for the payment of rent, demanded the grain delivered by Hodson to the defendant, and the demand being refused, this action resulted. The trial court held that under the arrangement between the plaintiff and Hodson for the farming of the land in 1924 there was no reservation of title to the crop, that the lease was oral and without stipulations other than the agreement on the part of Hodson to pay a cash rental of $3.75 per acre.

It was the contention of the plaintiff in the trial court, and is here, that the plaintiff and Hodson intended to and did mutually agree that the written lease, which had been executed by Hodson and Thon, should ■continue in force and measure the rights of the parties in all particulars except as to the cash rental which was reduced from $4.50 to $3.75 per .acre.

Judgment was entered in favor of the defendant dismissing the action, and from that judgment this appeal is prosecuted. The action was tried to the court by stipulation and findings of fact and conclusions of law were duly made.

It is the contention of the plaintiff that the evidence is wholly insufficient to support the findings of the court upon the controlling question of fact; that the evidence clearly establishes an agreement between plaintiff and Hodson to recognize, as binding upon them both, the lease under which Hodson farmed the premises in 1923; and that inasmuch as title to the crop was reserved in that lease as security for the payment of the cash rental, the defendant became guilty of conversion when, upon demand, it refused to deliver the grain which it purchased from the lessor.

The plaintiff further contends that when he purchased the land from Thon he became entitled to “all the rights, duties, and obligations possessed by Thon” and that in legal effect -plaintiff was substituted “as landlord under such lease in the place of Thon.” Plaintiff then' cites,. *752Martin v. Royer, 19 N. D. 504, 125 N. W. 1027, and § 5345, Comp. Laws 1913, as follows:

> “A person to whom any real property is transferred or devised upon wbieb rent has been reserved, or to whom any snob rent is transferred, is entitled to the same remedies for recovery of rent, for nonperformance -of any of tbe terms of the lease or for any waste or cause of forfeiture as his grantor or devisor might have had.” Plaintiff says that “The law, in the absence of a newi contract and in the event of the tenant continuing his possession and cultivation, presumes the renewal or. continuance of the former contract, *in the absence of evidence overcoming that*presumptionquoting from Wadsworth v. Owens, 21 N. D. 255, 130 N. W. 932. It is then said that the burden is on the defendant to offer evidence to overcome the presumption that the old lease continued in force and the defendant having failed in that regard, the presumption prevails and the terms of the old lease govern, except as to the rent. We are referred to § 6094, Comp. Laws 1913, which reads:

> “If a lessee of real property remains in possession thereof after the, expiration of the hiring and the lessor accepts rent from him the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one year.”

It is then urged that the lessor has the option to treat the tenant who holds over as a trespasser, or as a tenant on the terms of the former lease, citing, to that effect, Merchants State Bank v. Ruettell, 12 N. D. 519, 97 N. W. 853. The conclusion is thus reached that Hodson held according to the former lease.

1. The plaintiff testified that sometime in the fall of 1923, or prior to March 1, 1924, he had a conversation with Hoclson with referencd to farming the land in 1924 *•*as to such conversation, the testimony of the plaintiff is as follows: “I wanted to rent him the entire half section, but I could not persuade him to take more than 160 acres. He said, if conditions were right, in the spring, that he might take a small portion, forty acres or so more, but that was all he would decide to operate at that time. Nothing more (was'said) except the terms of the rent was reduced somewhat. He was to pay $3.75 per acre instead of $4.50.” Reduced to narrative form, his testimony is as follows: “There was no conversation between Hodson and lessor about changing the terms of *753tbis lease, except as to tbe cash rent.” On cross-examination, plaintiff testified: Q: “There was no different arrangement made at tbat time ?” A: “Well be was to go ahead and handle tbe 160 acres on tbat basis.” Reduced to narrative form bis testimony on cross-examination continues: “My intention when I went to tbe farm was to look it over and to have a talk with Hodson. Hodson already bad tbe lease and it did not expire until March 4, 1924. Mr. Hodson was still on tbe place under tbe Xhon lease. I don’t remember whether there was anything said about tbe lease tbat be was working under .at tbe time I bad tbe conversation with Hodson in 1923. I remember changing or reducing tbe price from $4.50 to $3.75. It was sometime between tbe first of October and March. When I talked with him in tbe spring of 1924, I wanted him to rent tbe half section; Hodson said be would go ahead tbe same as be bad been doing and if conditions were right be would take some more of it, which be did. We made a definite agreement as to tbe rental when I saw him at tbe farm sometime between October and March. When I talked with Hodson I recall no conversation about plowing; it was a cash rental proposition. I agreed to rent tbe land to him for $3.75 per acre and no further arrangements were made. At tbat time I did not intend to make any claim for tbe crop so long as be was paying tbe cash rent. It was to come out of the crop.” On redirect examination, the plaintiff testified tbat he asked Thou if be bad security for bis rentals and Tbon told him be bad security on the crop until tbe rent was paid. “At tbe time I made tbe contract with Hodson, I did not say anything about tbat; I did not say anything about writing up a contract as I recall it. I did not say anything to Mr. Hodson to secure tbe crop until tbe rent was paid.”

Tbe lessee Hodson testified as follows: “I bad a verbal contract of lease with Vincent; be agreed to let me have tbe land for $3.75 per acre for tbe quarter. Tbat was all I rented from him at tbe time. It was a cash rental. I do not remember tbat there were any other terms or conditions made except as to the payment of a cash rental. Nothing was said about tbe kind of grain to be put in or tbe control of putting it in; I do not remember that anything was said about tbe lease I bad for tbe prior year 1923, at tbe time I bad tbis talk with tbe plaintiff. We agreed on .the price. Nothing tbat I remember was said except tbat 1 would farm tbe quarter at $3.75 per acre. When be was out to see me, *754be spoke about making out a written contract but be did not bave tbe time. lie was in a burry to go borne as I remember it. Tbat was about all tbat was said. ' I said be could draw up a written contract any time be would want to draw up one.”

A son of tbe lessee wbo claimed tbe be was present during tbe conversation, testified in substances as follows: “I beard father say to Vincent tbat be would take tbe place for 1924, and tbat be would give bim so much, but I did not bear him say what be would give; ánd when be (Vincent) left, he said something about a contract. He said be would be back later on.”

Tbe foregoing, we think, fairly presents the testimony upon tbe subject of tbe contract between tbe plaintiff and bis tenant Hodson. Tbe trial court concluded tbat tbe parties bad not adopted as binding on them tbe terms of tbe old lease. Tbat lease bad expired; at tbe time when tbe premises were conveyed to tbe plaintiff tbe lease and tbe lessor’s rights thereunder, bad been assigned to one Scbulstad. Of this fact plaintiff admits be bad knowledge. Consequently, be claimed no interest whatever, in the crop raised in 1923.

2. Plaintiff testifies- explicitly that be went out to tbe farm and arranged with Hodson to lease tbe land for tbe season of 1924; and tbat be made tbe agreement sometime between October, 1923 and March, 1924. Tbe old lease expired on March 4, 1924. It appears, therefore, tbat when plaintiff and Hodson agreed tbat tbe latter should farm tbe land in 1924, tbe old lease was still in force. There was no bolding over tbe term, within tbe provisions of § 6094, supra, with a resulting renewal of the old lease for another year. Neither does § 5345, supra, have any application for tbe very obvious reason tbat when tbe grant was made to plaintiff, tbe grantor bad transferred all bis rights under tbe lease to another person, and of this transfer the plaintiff bad full knowledge. Plaintiff, as grantee of tbe lessor, never did and does not now claim any rights by virtue of tbe relationship of landlord and tenant which subsisted between bis grantor and Hodson at tbe time of tbe conveyance to bim of tbe land on which tbe crop was raised He claims by virtue of an independent contract with Hodson -whereby be alleges tbat they mutually agree to adopt tbe old and then existing lease as tbe measure of their rights and obligations in all particulars except that which related to tbe amount of tbe cash rental.

*755Plaintiff certainly never bad the right to treat Hodson as a trespasser. He was on the land pursuant to an agreement which the new owner says he made with him, prior to the expiration of the original lease. He proved such an agreement himself, but, in the view of the trial court, be failed utterly to prove that the terms of the old lease were'incorporated in the new.

The trial court saw and heard the rvitnesses. This is not a case triable anew. It is an action at law properly triable to a jury. The findings of the trial court are presumed to be correct unless clearly opposed to the preponderance of the evidence. Gotchy v. North Dakota Workmen’s Comp. Bureau, 49 N. D. 915, 194 N. W. 663. We are satisfied that the findings and conclusions of the trial court are justified under the evidence. The testimony of the plaintiff is somewhat vague; he nowhere specifically states that the lessee agreed to farm the land upon the terms and conditions stipulated in the old lease. The inference is fairly warranted from all the testimony that the old lease was not in the contemplation of the parties at the time; that in fact, it was the intention of the plaintiff to prepare a new lease.

The conclusion follows that there was no reservation of title to the crop as security for the payment of the cash rental, and that the lessee had a right to sell, and the defendant the right to purchase, the crop raised during the season of 1934. There was no. conversion.

The judgment of the trial court is affirmed.

CheistiaNSON, Oh. J., and Burke, Bikdzell, and Nuessle, JJ., concur.