Finty v. Kinder

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1325*—when only competent evidence presumed, to have teen considered. It will be presumed that the trial court did not consider incompetent evidence in arriving at its conclusions where there was competent evidence to sustain the decree.</p> <p>2. Appeal and error, § 1711*—when error deemed vjaived. An error in regard to the admission of incompetent evidence will be deemed waived where there is no claim made upon appeal that the court refused to admit competent evidence.</p> <p>3. Specific performance, § 44*—jurisdiction to enforce agreement to lease. The jurisdiction of a court of equity to enforce specific performance of a contract for a lease depends upon the facts averred in the bill, and while not on the same ground that a court takes jurisdiction of a contract involving a freehold, it is upon the averments in the bill that the party entitled to possession or under the agreement is out of possession, and that to rely upon the remedy at law means endless and expensive litigation, multiplicity of suits, irreparable injury, etc., or some of those elements.</p> <p>4. Specific performance, § 44*—when agreement to lease not enforced. Specific performance of an agreement to lease property will not he granted when the terms of the agreement are not fully and clearly stated.</p> <p>5. Landlord and tenant, § 23*—lohen rights lost under agreement to lease. One who enters into an agreement to lease property for a term of years at a stipulated monthly rental waives his rights under the agreement, where the tenant refuses to sign and accept the lease proffered by the landlord and is permitted to remain in possession upon payment of the stipulated rental.</p>