Alabama Butane Gas Co. v. Tarrant Land Co.

• Decision Date: 20 May 1943
• Docket Number: 6 Div. 123.
• Citation: Alabama Butane Gas Co. v. Tarrant Land Co., 244 Ala. 638, 15 So.2d 105 (Ala. 1943)
• Parties: ALABAMA BUTANE GAS CO. et al v. TARRANT LAND CO.
• Court: Alabama Supreme Court

15 So.2d 105

244 Ala. 638

ALABAMA BUTANE GAS CO. et al v. TARRANT LAND CO.

6 Div. 123.

Supreme Court of Alabama

May 20, 1943

Rehearing Denied June 10, 1943.

Further Rehearing Denied Oct. 14, 1943.

Bill in equity by Tarrant Land Company against Alabama Butane Gas Company and others. From a decree overruling a demurrer to the bill as amended, respondents appeal.

Affirmed.

The bill makes parties respondent thereto Alabama Butane Gas Company, a corporation, American Oil Company, a corporation Louis Darring and Eva Darring, and as amended is in substance as follows:

"2. That heretofore, on, to-wit, the 30th day of October, 1930 complainant Tarrant Land Company leased and let in writing to one Charles Darring for the period of, to-wit: ten years, to the first day of December, 1940, the following described real property and premises, to-wit: * * *

"A copy of said lease is hereto attached as 'Exhibit A' and made a part hereof to the same extent and as fully as if herein set out in full; that upon execution of said lease Charles Darring entered upon said premises and took possession thereof;

"3. That in and by the terms of said lease and as a part of the consideration therefor it was provided,--'That the lessee shall not under lease, sub-let or sub rent said premises or any part thereof or transfer or assign within lease without the written consent of lessor or his agents. Each transfer and assignment, and each sub-letting or renting of said premises unless the written consent of the lessor or his agents be first obtained shall be null and void, at the option of the lessor or his agent.', and orator avers that neither it nor its agents has given its consent to any under-lease, sub-let or sub rent of said premises or any part thereof nor to any transfer or assignment of said lease and orator elects to treat any attempted under lease, sub-letting or sub-renting of said premises or any attempted transfer or assignment of said lease as null and void.

"4a. Complainant is informed and believes and upon such information and belief avers that said Charles Darring and the respondents used said premises and operated thereon the business of wholesale and retail sale of butane gas. Orator avers that said Charles Darring never surrendered possession of said premises to complainant; that said Charles Darring died intestate on, to-wit: the 5th day of March, 1942, and there has been no administration of his estate; that the respondents are still in possession of said premises.

"5a. Orator further avers that on October 23, 1934, a certificate of incorporation was filed in the Probate Office of Jefferson County, Alabama, by Charles Darring, Louis Darring and Eva Darring incorporating American Oil Company, the said Louis Darring being the brother and Eva Darring the sister of Charles Darring. In said certificate Charles Darring is designated as President, Louis Darring, Secretary and Treasurer and Eva Darring Director. Orator is informed and believes that on such information and belief avers that the individuals who are designated as officers and directors of said corporation were in the active charge of the business of said corporation.

"6a. Orator further avers that on August 4, 1938, a certificate of incorporation was filed in the Probate Office of Jefferson County, Alabama, incorporating Alabama Butane Gas Company, by Charles Darring, A.G. Harding and Dr. John L. Endsley in which certificate Charles Darring is designated as President A.G. Harding, Vice President and John L. Endsley as Secretary and Treasurer. Orator is informed and believes and on such information and belief avers that said Alabama Butane Gas Company, a corporation, was managed and controlled by Charles Darring, Eva Darring and Louis Darring and operated a butane gas business on said premises.

"7a. Orator further avers that it is informed and believes and upon such information and belief orator avers the fact to be that at all times during the term of said lease Charles Darring, Eva Darring and Louis Darring have been in control of the business operated on said premises under said lease that they have been the dominant persons in charge of the business on said premises; that the said corporations were family owned corporations, and were merely simulations for the purpose of operating said business on said premises.

"8. Orator further avers that in any by the terms of said lease and as a part of the consideration therefor it is provided 'That if the lessee shall continue in possession of any part of said premises after the expiration of the aforesaid term, without the written consent of lessor or his agents then this lease, at the option of the lessor or his agents shall continue in full force until the next September Thirtieth with all conditions, covenants and terms herein set forth except the rental of said premises shall be double the amount herein fixed.'

"9. That the rental contracted to be paid by said Charles Darring for the tenth year was Seventy ($70.00) dollars per month and orator admits payment of rent for said premises to December 1st, 1940; that no rental has been paid for said premises since December 1st, 1940, and all rents subsequently accruing are in default and unpaid;

"10. That said lease contained the further agreement in words and figures as follows: 'It is understood and agreed as a part of the consideration for this lease that in the event of default by the lessee in the payment of the rents herein reserved and provided to be paid for a period of six consecutive months during the term of the lease, that all of the buildings and improvements of every kind and character erected on said premises shall revert to and become the property of the lessor and thereafter the lessee shall have no right, title, interest or claim thereon.'

"11a. Orator avers that during the period of tenancy of said premises said Charles Darring and the respondents have erected on said premises a large tank for the storing of Butane gas with pipes attached thereto, said tank being upon substantial pillars, and said tank so attached to said pipes, largely placed underground, that a substantial building has been erected on said premises, containing foundations to which are affixed machinery, pumps and motors for the operation of a butane gas business; that there has been erected a gasoline filling station on said premises with a large tank buried underground with gasoline pump attached and that all of said improvements were erected by the said Charles Darring and the respondents.

"12a. That in the conduct and operation of said butane gas business or businesses defendants have owned tank trucks which were brought on said premises for the hauling of butane gas to customers, which said trucks have enjoyed the use and protection of said premises; also various items of personal property, furniture and equipment were brought on the premises by defendants and have enjoyed the use and protection of said premises.

"13. That in said lease lessee further agreed to pay the lessor or his agents a reasonable attorney's fee in the event of the employment of an attorney to collect any rents, damages or amounts that may become due by lessee under said contract or to file and prosecute a suit against lessee or one holding under the lease, or for unlawfully withholding possession of said premises.

"Wherefore, the premises considered: Complainant prays:

"(a) That process be issued as provided by law to the said Alabama Butane Gas Company, a corporation, American Oil Company, a corporation, Louis Darring, Eva Darring, making them and each of them parties respondent in this cause and requiring each of them to plead, answer or demur within the time required by law or upon their failure to do so, to suffer a decree pro confesso against them.

"(b) That an Administrator Ad Litem of the Estate of Charles Darring, deceased, be appointed by this Honorable Court; that such administrator Ad Litem be made a party respondent to this bill of complaint by proper service and that he be required to plead, answer or demur to this bill of complaint within the time required by law or to suffer a decree pro confesso against him in the premises.

"(c) That a decree be entered in this cause ordering the Register to hold a reference and to ascertain and report:

"1. The amount due complainant as rent for said premises, with interest thereon.

"2. What is a reasonable amount to be paid complainant for his Solicitor's fees for his services in filing this bill of complaint and prosecuting this suit to a conclusion.

"(d) That upon coming in of the Register's report a decree be entered confirming the same.

"(e) That upon final hearing of this cause a decree final be entered herein decreeing that complainant have absolute title in and to all the buildings and improvements of every kind and character erected on the said premises and specifically describing the same; decreeing the amount due complainant for rent, plus interest and a reasonable amount as Solicitor's fees for services, rendered in this cause and giving complainant a judgment against the estate of Charles Darring, deceased, for said amount and a judgment against each of the other said respondents, namely: Alabama Butane Gas Company, a corporation, American Oil Company, a corporation, Louis Darring, Eva Darring, to the extent that the proof may show each of them respectively, to be liable with a lien upon said tank trucks and other items of personal property furniture and equipment that have enjoyed the use and protection of said premises to the extent provided by law in such cases and specifically describing said items on which such lien is given and ordering that the Register sell the same for satisfaction of the decree in accordance with the...