
    Dodson v. Hall.
    Lease.. Construction. A lease providing for clearing and three crops on each piece cleared, construed to extend the whole lease until the time on the last clearing shall run out.
    FROM ROANE.
    Appeal in error from the Circuit Court of Roane, August Term, 1872. E. T. Hall, J.
    Prosser, for plaintiff in error, with whom was Staley, who said:
    This is an action which was brought by B. B. Hall against James Dodson, before three justices of the peace, to recover the possession of-a tract of land in Roane county. It is called in the warrant an action of “forcible and unlawful entry and detainer.”' There was judgment for Hall before the justices, and Dodson appealed. Hall obtained a writ of possession, under the Act of February 9, 1870, ch. 64, (Shank-land, p. 124) which was executed and the plaintiff in error dispossessed. In the Circuit Court there was. verdict and judgment for Hall for all the land sued for except two acres. Dodson's motion for a new trial having been disallowed, he appealed in error.
    The action, though called “forcible and unlawful entry and detainer” in the warrant, was intended to be an action of “unlawful detainer,” and it will be so regarded, although no amendment was made.
    Hall leased the land, in the year 1868, to Robert Luffman. Luffman assigned the lease to W. R. Lyt-tleton, and Lyttleton assigned it to Dodson, the plaintiff in error. The case will turn on the construction of this lease. After reciting that Hall has rented Luffman certain land, the lease proceeds: “Said Luff-man to cultivate all the old lands that are now in cultivation, and is to pay the third, and is to repair the fencing, and is to be paid out of the proceeds of the land. Luffman is to put the farm in good farming order, and is to clear twenty acres of land, or more if desired, and is to put it under a good fence, and is to have' three crops of all the land he clears. Luffman is to clear six acres for the present year, 1868; the next, ten acres, and the rest to be agreed upon hereafter. Luffman is to take cáre of the timber. What buildings he puts up is to be cut off the land that he clears, except board timber.”
    Defendant’s counsel asked the court to charge that, under a proper construction of the lease, defendant would be entitled to hold the land covered by the lease until he had had three crops from all the land he had cleared. This the court refused, but charged A as follows; “That if the jury should believe, from the evidence, that the defendant or his assignor had had three crops from the six acres cleared in 1868, and three crops from the ten acres cleared in 1869, and only two crops from that part of the land cleared in 1870, then, under a proper construction of the lease, the plaintiff Hall would be entitled to recover all the land embraced in the lease except the part cleared in 1870; and as to this, he would not be entitled to recover until the expiration of the year 1872, or until defendant had gathered three crops therefrom.”
    It is respectfully submitted, that the instructions of the court are erroneous. They seem to have been given without reference to the other parts of the contract, and as if the land cleared by the tenant was all that the lease covered. Under this construction, Hall could have brought his action on the 1st day of January, 1871, and recovered all the land except the ten acres cleared' in 1869 and the two acres cleared in 1870. If the tenancy fended as to the six acres at the expiration of the year 1870, and as to the ten acres at the expiration of the year 1871, when did it end as to the old land, or the land in cultivation at the time the lease was made? By what authority is it said that a part of said land shall be held by one tenure, and another part by a tenure different? There is but one contract, and the time of holding is the same for each and every part of said land. It is obvious the provision in the lease, that the tenant is to have three crops off of all the land he clears, is but a method of prescribing the limitation of his estate. The termination of the estate is not otherwise expressed. It is as though Hall had said to Dodson: I have a tract of land which I will lease you. Part of it is ready for cultivation. You will cultivate that part and pay me, by way of rent, one-third of the crop. I want about twenty acres cleared. You will clear six acres of this in 1868. For your labor and expense of clearing it, you shall have three crops off of it. The six acres shall then be considered a part of the “old lands,” for which you are to pay one-third. In 1869 you will clear ten acres, and for so doing you shall have three crops off of it. The ten acres shall then also form part of the “ old lands ” for which rent is to be paid. We will agree upon the time for clearing the rest, and when you shall have had three crops therefrom the lease shall terminate. This is the true construction, and is easy and natural.
    Hall and Dodson did agree upon “the rest” — two acres — in 1870, Hall being unwilling to have any more cleared. Dodson cleared the two acres agreed upon, and cultivated them in 1870 and 1871. Hall brought this suit on the 3d of January, 1872 — one year before any right of action accrued.
    BiíowN & Hicks, for defendant:
    This action of unlawful detainer, brought by the defendant in error against the plaintiff in error, involves the construction of a written lease.
    The plaintiff in error (as assignee of this lease) insists that he was entitled to remain upon and hold all the land covered by the lease until he had had three crops from all the land he had cleared, and his counsel asked the court so to instruct the jury.
    But the court instructed the jury, in substance, that if the defendant had not had three crops from all the land he had cleared, that would not entitle him to hold possession of that portion which he had had three crops from.
    This construction of the lease was evidently correct. It evidently was not the intention of the parties that the lessee should have more than three crops from any portion of the land he cleared. The defendant-admitted that he had sown one of the fields after his time was out. But it really seems that the lease itself is as clear as argument can make it, that it was the intention of the parties that three years’ enjoyment of each separate piece of land which the defendant might clear, should be all the remuneration he should receive for clearing it. Any other construction of the lease would lead to absurd consequences. Suppose that the tenant had cleared twenty acres the first year and none the second, and the third year had cleared one rood. Would it be contended that, as remuneration for clearing the rood, he would not only be entitled to hold and cultivate the rood for three years, ■ but also the twenty acres for two years after his three years’ enjoyment thereof had expired ? Certainly such was not the intention of the contracting parties. If such was their intention, then the tenant, by clearing a rood every year, might hold the farm for twenty years.
    An objection seems to be raised to the manner in which the defendant in error brought his suit. He brought the suit in his own name when, as plaintiff in error insists, he should have brought it as guardian. If the defendant is entitled to the possession of the land, it is immaterial whether his right to that possession is in his own right or — pur autre droit — in another’s right. At all events, it is not a matter going to the merits for which this court will reverse.
   McEaeland, J.,

delivered the opinion of the court.

This is an action of unlawful detainer, commenced before three justices of the peace, by Hall against Dodson. Hall made a written lease of certain premises to Luffman, who assigned the same to Lyttleton, and he to Dodson, who was in possession at the commencement of the suit. The case turns upon the construction of this lease. The material parts are as follows: Bailey B. Hall has agreed with Robert Luffman to lease him the part of land known as the part of George Dutton’s land, as the guardian of said George Dutton,” etc. The following is the agreement: Said Luffman to cultivate all the old lands that is now in cultivation, and is to pay the third, and is to, repair the fencing, and is to be paid out of the proceeds of the land. Luffman is to put the farm in good farming order, and is to clear twenty acres of land, or more if desired, and- is to put it under a good fence, and is to have three crops off of all the land he clears. Luffman is to clear six acres for the present year (1868), the next year ten acres, and the rest to be agreed to hereafter, etc. Luffman is to take care of the timber. What buildings he puts up is to be cut off of the land that he clears, except board timber.” This has no date, but shows it was executed in the year 1868. The six acres were cleared by Luffman in 1868, and Dodson, his assignee, cleared the ten acres in 1869, and in the year 1870 cleared two acres, as the proof shows, because Hall did not want any more cleared. The suit was commenced the 3d of January, 1872, after three crops'had been made upon the land cleared in 1868 and 1869, but before three crops had been made on the land cleared in the year 1870.

Under the construction given the lease by the Circuit Judge, there was verdict and judgment for all the land except the two acres cleared in 1870. Dodson appealed.

The contract is indefinite and somewhat ambiguous in its terms. No time is definitely fixed for its termination. It clearly appears, however, that of the twenty or more acres that were to be cleared, four acres were to be cleared after the year 1869, which would be, of course, as late as 1870. From this the tenant was to receive three crops, which would extend the time as to this four acres to the end of the year 1872. This is not denied; but it is insisted that, as to the land cleared in 1868 and 1869, the lease terminated when three crops had been received therefrom, which was before the suit began.

To this construction there are several serious objections. First, the lease appears to be one entire contract, and for one entire term, whatever it may be. The whole farm is embraced in the lease, and it was contemplated that the lessee might reside upon it’. This is apparent from the following clauses of the article : Lufiman is to put the farm in good farming order. * * Is to cultivate all the old land that is now in cultivation, and pay the third. * * Luff-man is to take care of the timber. What buildings he puts up are to be cut off the land that he clears, except board timber.” So it is reasonably certain that the lease embraced the farm, and the lessee might put up buildings probably to reside in. In this view, it would be more reasonable to hold that the lease would terminate as to the entire farm at the same time, in absence of anything to the contrary ; and as it is conceded that the lease, as to the land cleared in 1870, extended to the year 1872, this would carry the entire lease to that time.

Again, the construction given that the lease terminated, as to each piece of land cleared, when the lessee had received three crops therefrom, would furnish no rule by which to determine when the lease terminated as to the old land. This the lessee was to cultivate and pay one-third, after repairing the fences, and this may have embraced a large part of the farm; and as to this, there is nothing to indicate that the lease was terminated at any period prior to the termination of the entire term.

This construction does not give the lessee the rents for any longer period than agreed upon — the term upon which rents were to be paid are fixed, that is, one-third of the crop. - We are of opinion that the most reasonable construction to be given this lease is, that it extended long enough to allow the lessee to remain in possession and receive three crops from the land cleared in 1870, that is, to the end of the year 1872; but that the lessee would, of course, pay rents as agreed upon for the old lands, and the lands cleared in 1868 and 1869 after the third crop.

From this view, it results that the judgment must be reversed.  