Jenkins et al. r. Jenkins. scribed as agent in the instrument. Ind. 495. Prather v. Ross, 17 Tested by this rule, the alleged erasure upon the face, or alteration, of the note, set up in the first paragraph of the answer, was an immaterial erasure or alteration, and hence not well pleaded. See, also, The Inhabitants of Congressional Township No. 11, etc., v. Weir, 9 Ind. 224; Hobbs v. Cowden, 20 Ind. 310; Means v. Swormstedt, 32 Ind. 87; Hays v. Crutcher, 54 Ind. 260. As the note under consideration purported on its face to be in legal contemplation the individual note of the makers, it follows that any defence which involved the introduction of parol evidence tending to give it a different construction, or to change its legal effect, was bad upon demurrer. Cases have arisen upon defective or ambiguous instruments, in which parol evidence has been admitted to give effect to the intention of the parties to such instruments, but the precedents furnished by such cases are not applicable to the case before us. We think the second paragraph of the answer was also insufficient. We see no error in the record. The judgment is affirmed, at the costs of the appellants. JENKINS ET AL. v. JENKINS. LANDLORD AND TENANT.-Forfeiture of Lease for Non-Payment of Rent.— Demand. By the terms of a written lease of a tract of real estate, the tenant was to pay to the landlord annually, on a specified day, a stipulated sum of money as rent; and if the annual rent was not promptly paid, as it became due, on or before the day specified, the lease was to be null and void. Jenkins et al. v. Jenkins. Held, there being no place of payment stipulated, that, to work a forfeiture of the lease for non-payment of rent, payment of the rent due should have been demanded by the landlord of the tenant, on the premises, just before sunset on the day specified. Held, also, that a demand, made at any other time on such day, worked no forfeiture of the lease. SAME.-Notice to Quit for Non-payment of Rent.—Service.—Statute Construed. The ten days' written notice to quit for non-payment of rent, under section 4 of the act of May 20th, 1852, 2 R. S. 1876, p. 336, “regarding landlords, tenants," etc., must, under section 6 of such act, be served by delivering the notice itself to the tenant, or, if he can not be found, to some person of proper age and discretion, residing on the premises, after having first made known to him the contents of the notice. SAME.-Service of such notice by reading the same to the tenant is insufficient. From the Ripley Circuit Court. E. P. Ferris and W. W. Spencer, for appellants. Howк, J.-In this action, the appellee, as plaintiff, sued the appellants, as defendants, to recover the possession of certain real estate, and damages for the unlawful detention thereof. The appellants demurred to the appellee's complaint for the want of sufficient facts therein to constitute a cause of action, which demurrer was overruled, and to this decision the appellants excepted. The appellants then answered in six paragraphs, the first being a general denial, and each of the other paragraphs setting up an affirmative defence. The appellee demurred to each of the third, fourth, fifth and sixth paragraphs of said answer, upon the ground that it did not state facts sufficient to constitute a defence to the action, which demurrer was overruled to the third, fifth and sixth paragraphs, and sustained as to the fourth paragraph, of the answer, to which latter decision the appellants excepted. as The appellee then replied, by a general denial, to the second, third, fifth and sixth paragraphs of the answer. Jenkins et al. v. Jenkins. The issues joined were tried by a jury, and a special verdict was returned in the words and figures following, to wit: "We, the jury, find the facts in this case to be as follows: "1st. We find, that, on the 10th day of December, 1868, the defendant Alexander Jenkins leased of the plaintiff the following real estate, in Ripley county, Indiana, to wit: The south half of the south-west quarter and the north-east fourth of the south-west quarter, and the northwest fourth of the south-west quarter, all in section 34, township 8 north, of range 10 east, containing 100 acres ; also the north-east of the south-east, and the south-east of the south-east, quarter, in section 33, township 8 north, of range 10 east, containing 80 acres; also all that part of the north-east of the north-east quarter of section. 4, township 7, north of range 10, that lies between the last named 40 acres and Otter creek, except a certain tract sold by Robert Ruby to James Fulton, being in all 253 acres; and that said Alexander Jenkins is now in possession of the above described premises. "2d. We find the conditions of the lease, as follows: Alexander Jenkins was to pay plaintiff ($200.00) two hundred dollars each year for the use of said real estate, the first payment to be made March 1st, 1870; the lease was to extend during the natural life of the plaintiff, Jane Jenkins. "3d. We further find, that it was stipulated in said lease, that, if the rent was not promptly paid, on or before the 1st day of March each year, as it became due, and on failure of Alexander Jenkins, or his heirs, to perform the condition of the lease, the same was to be null and void. And the said Alexander Jenkins was to pay the taxes now due, and to become due, on said premises. The further condition of the lease is, that the fee-simple interest of said VOL. LXIII.-27 Jenkins et al. v. Jenkins. real estate was at the time in Alexander Jenkins, and he was in possession, and if he should be disturbed in said possession, on account of any debt or default against himself, no deduction on account of rent shall be made on account of the same. "4th. We find there was no condition in the lease of a forfeiture of the lease, in case the taxes were not paid. "5th. We find that the rent has been paid to March 1st, 1874, and at the time this suit was brought or commenced, to wit, December 27th, 1876, there was another action pending in the Ripley Circuit Court, of Ripley county, Indiana, No. 1608, between Jane Jenkins, plaintiff in this action, and Alexander Jenkins, one of the defendants, commenced August 22d, 1876, and that the same was pending when this suit was instituted, and was for the identical same cause of action, so far as rent and taxes are concerned, as in this cause. "6th. We further find, that, on the 1st day of March. 1876, the plaintiff made a demand of Alexander Jenkins, on the premises, for the sum of $400.00 rent then due, or immediate possession of the premises; and that said demand was made at one o'clock P. M. of said day, and at no other time; and that said Alexander Jenkins refused to pay, stating that he did not owe any thing. 66 "63. We further find, that, at the time of making the demand on the 1st day of March, 1876, there was due on the rent the sum of $400.00. "7th. We find that a notice was served by plaintiff on the 10th day of August, 1876, upon defendant Alexander Jenkins, on the premises, stating the premises as described in the lease, and notifying the said Alexander Jenkins to pay the rent, or give possession in ten days, and that no amount of rent was specified in said notice, and that the notice was read to the said Alexander Jenkins on the premises, about three o'clock P. M., and was not delivered Jenkins et al. v. Jenkins. to the defendants, or either of them, but was returned to the plaintiff's agent, and that no other notice has been. given. "8th. We find, that Wiley Barrickman disclaims any interest in said premises, and as to Nancy Jenkins we find, that she has no interest in said premises. "9th. We find, that the rent due on said premises, from March 1st, 1876, to this date, amounts to the sum of $292.59. "10th. We find, that the plaintiff never requested the said Alexander Jenkins to pay the taxes, at any time before the commencement of this suit. "If, therefore, upon the aforesaid facts, the law is with the plaintiff, we find for the plaintiff, and assess his damages at $292.59. "If the law is with the defendant we find for the defendant." The appellants each separately moved the court in writing, for judgment in their favor, on the special verdict of the jury, for the reason that the law was with them, which motion was overruled, and to this ruling they excepted. The court sustained the appellee's motion for a judgment on the verdict, in her favor, and to this decision the appellants excepted. Judgment was then rendered for the appellee, on the verdict, for the recovery of the possession of the real estate described therein, and of the damages assessed and costs, to the rendition of which judgment the appellants excepted, and appealed therefrom to this court. Among the alleged errors of the court below, assigned by the appellants in this court, was the following: "Third. Because the court erred in overruling the appellants' motion for a judgment on the special verdict of the jury." |