Frank M. Black v. Daniel George.
Where a sale of real estate is made on partition, and at the time of the sale, and as part of its terms, the possession of the premises is reserved to the tenants in common until the expiration of a current lease, and the deed to the purchaser is not executed and delivered until after the expiration of such lease, the tenants in common, and not the purchaser, are entitled to the rent reserved in the lease.
Motion for leave to file a petition in error to reverse the judgment óf the District Court of Pickaway county.
The plaintiff in error, who was plaintiff' below, brought an action in the Court of Common Pleas to recover of the defendant the sum of $600, for the rent of certain premises purchased by him in September, 1873, at a sale made on an order of the last named court, in certain proceedings for the partition of the premises purchased, which were then in the possession of the defendant, as the lessee of the parties to the proceedings in partition, for the term of one year from March 1, 1873, at a cash rent of $600, payable March 1, 1874, and which was not paid at that date. The sale was *630confirmed, and a deed ordered at the November term, 1873r and the deed executed and delivered July 20, 1874.
The answer denies that the plaintiff was entitled to the rent that had accrued on the lease on the 1st of March, 1874, and avers that at the time of, and before the sale was made, it was announced by the sheriff that the premises were then in the possession of the defendant, under a lease that would expire on March 1,1874, and that possession thereof would not be delivered to the purchaser until after the expiration of the lease. The answer also avers that the plaintiff' purchased the premises on those terms.
These allegations of the answer are denied by the reply; and on the trial the jury found specially, “ that at the time-of the sale of the premises in said petition mentioned it was announced that the purchaser at said sale was not to-have possession of said premises purchased until the 1st day of March, 1874,” and “that at the time of said sale it was the understanding of the plaintiff, and the parties selling said lands, that the purchaser was not to receive said rents, or any part thereof, for the year terminating March 1, 1874.”
The plaintiff moved to set the verdict aside, and in arrest of judgment, which motions were overruled by the court, and the rulings excepted to by the plaintiff; and thereupon the court rendered judgment on the verdict for the defendant.
On petition in error, the District Court affirmed the judgment of the Court of Common Pleas, to reverse which the-plaintiff now asks leave to file a petition in error in this court.
Henry F. Page, for the motion:
The purchaser had a right to receive the rents. 1 Wash-burn on Real Prop. 333, sec. 5; 4 Zabriskie, 493; Taylor on Landlord and Tenant, see. 440; MePeady v. Bresbain, 1 Nott & McCord, 104.
P. C. Smith, contra.
*631Rex, J.
The reasons assigned by the plaintiff iu the Court of Common Pleas for setting aside the verdict of the jury were :
1. That the verdict was against the evidence; and,
2. That the verdict did not find, and was not responsive to the issues made in the pleadings.
Of these in their order:
1. Whether or not the verdict of the jury was supported by evidence produced and properly admitted at the trial, we are unable to determine from the record before us. The record does not contain' the evidence, nor does the journal of the court show that a bill of exceptions containing the evidence given at the trial was tendered to, allowed, or signed by the court, or made part of the record in the case. We must therefore presume in favor of the proceedings of the court in which the trial was had, that the verdict was supported by evidence properly admitted in the case.
2. By the terms of the sale, the possession of the premises did not vest in the purchaser until after the expiration of the lease, up to which time the possession remained in the parties to the proceedings in partition, and they, being thus in possession at the time the rent became due on the lease, were entitled as against the purchaser to receive the rent.
The reservation of the possession of the premises reserved to them the right to collect and receive the amount due on the lease.
We are therefore of opinion that the verdict of the jury finds, and is responsive to the issues made by the pleadings, and that the District Court did not err in affirming the judgment of the Court of Common Pleas.
Leave refused.
Welch, C. J., White, Gilmore, and McIlvaine, JJ., concurred.