Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-25
Durett '. miller ct al, Marion County

Durett v. Miller ct al, Marion County.
Decided October II. 1911
F. r. Durett, respondent, V. Inez B.
Miller and Brandford J. j. Miller. ap-
pellants. Appeal from the circuit
court for Marion county. The Hon.
VIM. Galloway, judge. Argued and
submitted October 5, 1911. Geo. G..
Bingham FOR appellants. NJ f. Pogue
and John H. McNary for respondents.
Eakin, C. j. Affirmed.
This is a suit to enjoin defendants
from taking possession of, or turning
stock into, field occupied by the
plaintiff under lease.
On April %, 1908, the defendants
and other tenants in common. twelve
in all, the heirs of G. B. Miller, de-
ceased, attempted to lease to plaintiff
about 22O acres of land, in two tracts,
known as the 100-acre and the 120-
acre tracts The terms of the lease
were agreed upon, and 1t was signed
by defendant Mrs. Miller for herself
and three minor heirs, and by defen-
dant Brandford j. j. Miller and three
others. Some of the heirs did not
sign it, but it was delivered to plain
tiff and he entered into possession
Hereunder, the term of the lease be-
ing for six years from October l, 1908.
Plaintiff farmed the 100-acre tract in
1908, by some arrangement not under
the lease, summer-fallowed the 120-
acre tract, and seeded 1t in the fall
under the lease. The land was par
titioned among the heirs in 1909, by
which the 1OO-acre tract was assigned
to Mrs. Miller and the 120-acre tract
to five or six of the heirs, which ones
does not appear, but included the
three minors. Evidently on account
of some friction between plaintiff and
defendant Mrs. Miller plaintiff wrote
her letter on May IL, 1909. in which
| he says I'VE will not be able to farm
your land another year, so feel would
let you know in time so you can ar
range for summer-fallow. | feel this
is the only course left for me, as II
seems our mode of farming does moi
meet your approval" Mrs. Miller ac.
cepted the surrender of the 100-acrG
tract and plaintiff cropped the 100
acre tract that year, when in August
1909, Mrs. Miller treated the surrtn.
der as including that tract also, ant
she and Brandford attempted to take
possession of It, and this suit was
commenced to enjoin them.
Defendants deny the execution ant
delivery of the lease, but admit itS
terms were agreed upon and the LEASE
! ciunaH ac nhnt-a Y,,antfnnn1.
that plaintiff failed to comply witt
the terms of the lease and on the It'll
day of May, 1909. surrendered the
land, and that Mrs. Miller took pos
session of it. There was a decree
for plaintiff and defendants appeal.
Eakin, c. J. All the lessons who
signed the lease acquiesced in the
delivery of it to plaintiff and If 1t Il
not binding on those not signing it
yet it operates to transfer to plaintiff
the possession and right in the prop.
erty for the term of the lease by those
executing it, and thereby plaintiff be-
came the tenant in common with the
other owners. AS the partition was
made after the lease was executed, II
was made subject to the lease as tc
all who signed it, Mrs. Miller cannot
! forfeit the lease for a breach of its
terms. That can only be done by the
lessons or in suit to which they are
parties. Nor is forfeiture alleged oil
relied on in the answer. The breach
is only alleged as a circumstance lead.
ing to the surrender. Therefore the
only question for consideration is
whether plaintiff surrendered the 1870
acre tract, being the north field, which
defendants contend was SURRENDERED
as we'll as the 100-acre tract, by the
letter of May II, 1909, whereas plain.
tiff denies that he surrendered Il. The
fact that the 100-acre tract was as
signed to Mrs. Miller more than two
months before the letter was writer
and that the letter mentions the lanC
surrendered as your land" makini
no reference to the lease or the othei
land, 1t must be held to refer to thu
100-acre tract The lease does no
provide for crop for the year 190j
and the 120-acre tract was beinj
cropped by plaintiff in 1909. The let
ter purported to be present surren
der 80 you can arrange for summer
fallOw," showing that 1t could no
have had reference to the 120-acr
tract. Neither could plaintiff hav
surrendered It TO Mrs. Miller to bin
the other owners of that tract, or T.
release him from liability TO them
The 100-acre tract was the only Ian
he could surrender to her alone, an
we conclude that not only by the Ian
guage Of the letter, but by the ligh
of all the surrounding circumstance
plaintiff did not surrender the 12C
acre tract BY the terms of the leas
. plaintiff had exclusive use Of the Ian
as against those signing It and tn
action Of defendants in attempting I
take possession and turn stock upo