The Daily empire. (Dayton, Ohio) 1865-1867, 1866-06-25
LAW REPORT.
SUPERIOR couRr-JuDaE HAYNES.

-.
m Nanburen township. The plaintiff
claimed to have a lite estate in the lands
Ibyvirtue of a deed made by David Iesher
TO the children Of Jacob Lesher, in which
an exception in the form of rescrva-
tion was made, granting TO Jacob Lesher
a life estate, to Sarah Lesher estate for life,
or during widowhoOd, subject to certain
conditions. After describing the premises
the grantor inserted the clause:
"But reserving out ofthis conveyance the
occupancy and use, rents, issues and profits
of the said tract of land to the said Jacob
Lesher for and during his natural life, aud
TO sarah Lesher the wife of said Jacob
Lesher for and during her natural life or
widowhood, If she shall become widow.
Provided, however, that IL the said Sarah
Lesher shall become widow and shall
marry again, or shall, during her widow
hood, place a tenant upon said land, then,
and IN either event happening, the said
Sarah Lesher shall Immediately forfeit the
use and occupancy of said land, and the
possession, use and occupancy of said land
shall, from thencefOrth, be in and to the
children of the said Jacob Lesher their
heirs and assigns, together with all the
privileges and applrtenances TO the same
belonging, TO have and TO hold the same to
the only proper use of the said Jacob Lesher
and Sarah Lesher and the children of the
said Jacob Lesher their heirs and assigns
as aforesaid forever"
On the lst day of May, 1865, plaintiff let
out three fields to VIM. Hook and David
Apple, for the purpose of putting in a sum
mer crop, whereupon the defendants on the
18th day of the same month, seized the
premises and evicted the plaintiff from the
possession, claiming title thereto upon the
ground that she had forfeited the same
Plaintiff urged that would prevent her from
letting said premises so as to make them
profitable was inconsistent with, and re-
pugnant TO the enjoyment of the estate it
self; that grant of the occupancy, use,
rents. issues and profits of the land was an
Implied grant of the land itself Rents
being the periodical issue out of the lands
ana something which tenant renders in
return for the lands, and TO prevent putting
q tenant on tile land would be inconsistent
with this part of the grant and render such
condition void. And as the whole deed
must be looked at and construed according
TO the intention of the grantor, that il gave
10 jacob Lesher life estate, to plaintiff u
life estate subject to be determined by her
marriage and the remainder in fee TO the
defendants: The Court charged the jury.
that by bringing this action the plaintiff
seeks to obtain possession of the land and
AYERS that she has the right to the possess
sion, and that the defendants keep her out
of possession. sst ItE
The defendants deny her right to the
possession. Both parties claim, by virtue
of the deed of David Lesher, and the right
of possession is to be determined by con-
struction of that deed. By that deed, the
legal right to hold, possess, occupy and en-
joy the land was vested in her during her
widowhood. AT the death of her husband.
and against the defendant, she had the le-
gal and equitable right to the sole possess
sion
1t is claimed. however. that she forfeited
that right (if she had it) by the.agreement
with Hoke 4 Apple, by which they were to
cultivate three fields upon shares of the
crop. Ihat agreement even with possess
sion taken under it by Hoke a. Apple.
worked no forfeiture of her rights under
the deed of David Lesher. Notwithstand-
ing that agreement, she would still retain
the right to the possession, against the de-
fendants If Hoke q Apple, as appears In
the proof, had abandoned and surrendered
the agreement, and their right of possess
sion under it, and of all the residue of the
land, if they had not. tif
But it is claimed that the defendants had
the right of possession by virtue of a parol
agreement partly performed. BY right
holding possession of the land, living upon
it and inhabiting the house, an agreement,
between her and the defendants that they
should live with her and cultivate the land,
and that they should have their common
living out of the product, and n common
interest in IL, was not u surrender of her
right of possession to them, and gave them
no right to exclude her from the possession,
and If they attempt TO do so she can re-
cover possession.
{ If the plaintiff is entitled to recover DOS
session, she is also entitled TO recover dam
ages for the Withholding thereof. proper
mode OF ascertaining the damages, is by
the actual yearly rental value of
che land. But there may be circumstances
which show that she sustained greater or
less damages.
Money and labor expended in building a |
house are not to be consideredas affecting |
The amount OF damages and cannot be set on |
against them, but If crops had been put in |
under agreement aS claimed, and labor and |
money expended in part performance of |
such agreement, they had some interest in |
such crops, which may be considered as af- |
fecting damages. What they realized from
such crops should beconsidered, as she was |
entitled to her proper share.
The jury, after short deliberaton, re-
nrned verdict for the plaintiff for the re-
covery OF the lands and $500 damages.
Thompson and Mcmahon for plaintiff, |
Baggott and Howard for defendant.
GH If you want to be treated right in |
buying good article of clothing, and
at the right price, go TO Schwarz, llS Main
street, sign of the Golden Eagle.