Lange v. Evans, 209 N.C. 747 (1936)

March 18, 1936 · Supreme Court of North Carolina

209 N.C. 747

ANNIE E. LANGE v. W. L. EVANS.

(Filed 18 March, 1936.)

Landlord and Tenant D b—

Where the lessee forfeits and surrenders all rights under his lease, the lessor may recover the premises from a sublessee of the lessee, even though the sublease has not terminated under its terms.

Appeal by defendant from Oglesby, J., at September Term, 1935, of Buncombe.

No error.

This is a summary action in ejectment, tried in the Superior Court of Buncombe County on plaintiff’s appeal from a judgment of the justice of the peace of said county before whom the action was originally tried.

The issues submitted to the jury were answered as follows:

“1. Is the plaintiff entitled to the possession of the premises, as alleged in the affidavit? Answer: ‘Yes.’

“2. What amount of rent, if any, is the plaintiff entitled to recover of the defendant? Answer: ‘The amount due and unpaid, $64.00, on the basis of $16.00 per month up to the date of the Superior Court trial, but we think that defendant should be credited on rent with reasonable payment covering cost of improvements which he placed in building.’ ”

In the exercise of his discretion, the judge presiding set aside the • answer to the second issue and ordered a new trial of said issue.

Prom judgment that plaintiff recover of the defendant possession of the premises described in the affidavit, the defendant appealed to the Supreme Court, assigning errors in the trial.

Weaver & Miller, Ford, Coxe •& Garter and James S. Howell for plaintiff.

Sale, Pennell & Pennell and George G. Franklin for defendant.

Pub Cubiam.

The plaintiff is the owner in fee of the premises described in the affidavit filed in this action. The defendant is in possession of said premises, claiming as a sublessee of the lessee of the plaintiff. At the date of the commencement of the action the sublease had not expired. However, prior to said date, the lessee of the plaintiff, under whom the defendant claims, had forfeited and surrendered all his rights under the original lease.

On these facts shown by all the evidence, there was no error in the trial. The judgment is

Affirmed.