B. F. Avery & Sons' Plow Co. v. Kennerly

• Decision Date: 09 January 1929
• Docket Number: (No. 944-5057.)
• Citation: 12 S.W.2d 140
• Parties: B. F. AVERY & SONS' PLOW CO. v. KENNERLY et al.
• Court: Texas Supreme Court

Page 140

12 S.W.2d 140

B. F. AVERY & SONS' PLOW CO. v. KENNERLY et al.

(No. 944-5057.)

Commission of Appeals of Texas, Section B.

January 9, 1929.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by B. F. Avery & Sons' Plow Company against J. W. Kennerly and others. Judgment for plaintiff was reversed and remanded (300 S. W. 159), and plaintiff brings error. Judgment of Court of Civil Appeals reversed, and that of trial court affirmed.

Smithdeal, Shook, Spence & Bowyer, of Dallas, for plaintiff in error.

Cooper & Lumpkin, of Amarillo, for defendants in error.

LEDDY, J.

Plaintiff in error leased certain premises situated in the city of Amarillo, from defendants in error, for the purpose of conducting a wholesale and retail implement business; said lease covering a period of three years from August 1, 1925, at a monthly rental of $200 per month, the power of subletting or assignment not being granted by the lease. At the time the lease was executed, there existed against the premises a certain mortgage indebtedness held by Alex Davidson. Upon default being made in the payment of this indebtedness, a foreclosure was had, to which the lessee was not made a party, and Davidson became the purchaser under such sale. He thereupon demanded that plaintiff in error surrender to him the possession of the premises, and in obedience to such demand the premises were vacated two years before the expiration of the lease.

Plaintiff in error rented other premises which were not as safe or desirable as the premises in question, at a rental of $260 a month, and brought this suit to recover damages sustained by reason of being wrongfully evicted from the premises before the termination of the lease.

The trial court found that on August 1, 1926 (the date the premises were surrendered), the leased premises had a market rental value of $350 per month for the remaining two years of the lease, and also found that plaintiff in error had expended the sum of $702.50 in removing its stock to the newly rented quarters. Judgment was rendered for plaintiff in error for the difference between the market rental value of the premises of $350 per month and the contract price of $200 per month for the two-year unexpired period in the lease, to which was added the sum of $702.50, expenses of removal.

It is urged that as the plaintiff in error was not a party to the foreclosure proceeding, the judgment rendered therein was not binding on it, and therefore it must be ousted by legal process before there could be a breach of the covenant for quiet enjoyment of the premises. In other words, that its surrender of the premises upon demand of the owner of the paramount title was insufficient to constitute a legal eviction.

It is true that the lessee, not being a party to the foreclosure proceeding, was not bound by the decree rendered therein. Lockhart v. Ward, 45 Tex. 227; Alford v. Carver, 31 Tex. Civ. App. 607, 72 S. W. 869; Bateman v. Brown (Tex. Civ. App.) 297 S. W. 775.

The leased premises having been sold during the lessee's term under a decree foreclosing a mortgage given before the lease, and of which it had notice, gave the purchaser a title freed from the obligations of the lease. While no process could have been issued under this judgment which could have operated to dispossess the lessee, yet, when Davidson obtained his deed, he became the legal owner of the property and entitled to its immediate possession. His demand for possession was therefore a rightful one, and the lessee should not be barred from its right to claim damages because it surrendered the property to its lawful owner upon demand being made therefor.

The rule is well established that where a tenant, in good faith, yields possession in pursuance of a judgment of a court of competent jurisdiction to a person adjudged to be the owner of the paramount title, it is in law an eviction as effectual as though he were actually put off the premises. Tiffany on Landlord and Tenant, vol. 2, par. 186; Underhill on Landlord and Tenant, vol. 2, par. 692; Andrews v. Richardson, 21 Tex. 287; Gallagher v. Bennett, 38 Tex. 295; Merryman v. Bourne et al., 9 Wall. 592, 19 L. Ed. 683; Brandt v. Foster, 5 Iowa, 287; Holbrook v. Young, 108 Mass. 83; George v. Putney, 4 Cush. (Mass.) 351, 50 Am. Dec. 788; Morse v. Goddard, 13 Metc. (Mass.) 177, 46 Am. Dec. 728; Foss v. Van Driele, 47 Mich. 201, 10 N. W. 199; Geer v. Boston Little Circle Zinc Co., 126 Mo. App. 173, 103 S. W. 151; Home Life Ins. Co. v. Sherman, 46 N. Y. 370; Lowery v. Yawn, 111 Ga. 61, 36 S. E. 294; Halligan v. Wade, 21 Ill. 470, 74 Am. Dec. 108. The rule, which we regard in consonance with sound reason, is announced in 36 C. J. 272, as follows: "It is not necessary that the tenant should be forcibly ejected or dispossessed of the demised premises by process of law, but he may peaceably yield possession to the person who has the superior title or who has been adjudged to be entitled to the possession, and treat himself as having been evicted. However, an eviction does not arise by a voluntary surrender of possession or a mere assertion of a superior title. The person to whom the tenant yields possession must have a good title and a present right of entry, and tenant must act in good faith and without fraud or collusion.'"

The case of Basin Park Hotel Ass'n v. Arkansas Co., 151 Ark. 322, 236 S. W. 275, involved a...