Chapman v. Chase Nat Bank

Decision Date12 April 1937
Docket Number32627
Citation173 So. 455,178 Miss. 401
CourtMississippi Supreme Court
PartiesCHAPMAN v. CHASE NAT BANK

Division B

Suggestion Of Error Overruled April 26, 1937.

APPEAL from circuit court of Sunflower county HON. S. F. DAVIS Judge.

Action by C. B. Chapman against the Chase National Bank. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Johnson & Allen, C. C. Moody and Everett & Forman, all of Indianola and Green, Green & Jackson, of Jackson, for appellant.

The testimony offered should have been considered by the jury to determine whether or not Porter C. Chapman was the tenant and C. B. Chapman the landlord, or whether, if it could be so shown under the form of the pleadings in this case, that Porter C. Chapman was the agent of C. B. Chapman, as principal, with implied authority to execute negotiable instruments so as to bind C. B. Chapman. This court has held that the ownership of land by one and the occupancy of that land by another with liability for rent, is sufficient in itself to raise the presumption of a tenancy, and if the court had permitted the evidence offered on the second trial by defendant to have gone to the jury, the principles of law would have been materially different, and the instructions likely would have led the jury to the determination that there was no liability of C. B. Chapman on the notes signed by Porter C. Chapman, without any authority, knowledge, acquiescence or consent of C. B. Chapman.

Ordinarily and generally, the relationship of landlord and. tenant will be implied where there is ownership of land, on the one hand, and occupancy, by permission, on the other.

Hamilton v. Federal Land Bank, 167 So. 642; 35 C. J., page 957, sec. 21, page 959, sec. 22.

Where the tenant continues to occupy, and enters upon another year without objection from the landlord and with his silence or tacit consent and approval, a tenancy for another year is thus created.

Usher v. Moss, 50 Miss. 208.

This is in accord with the general rules applicable to landlord and tenant, even between husband and wife.

16 R. C. L. 593, sec. 70; 13 R. C. L. 1342, 1343, secs. 381 and 382; Tonkel v. Riteman, 163 Miss. 216, 141 So. 344; Oxford Spotless Cleaners v. Mayfield, 157 Miss. 565, 128 So. 567.

There is no difference presented here in the general rule solely because Porter C. Chapman happened to be the husband of C. B. Chapman. The wife is not liable for the independent debts of the husband, especially where the debt was created as is here demonstrated solely on the credit of the husband and for his use and benefit, as a tenant farming the lands owned by his wife.

Skehan v. Davidson Co., 164 Miss. 518, 145 So. 247; Section 1940, Code of 1930; Gray v. Sullivan, 162 Miss. 610, 139 So. 855; Chase, National Bank v. Chapman, 160 So. 286.

Even if this action had been brought under Section 1943, Mississippi Code of 1930, and under its express provisions, the testimony offered by the defendant would have been admissible.

Rivers v. Eastman Cotton Oil Co. 159 Miss. 3(1, 132 So. 327; Payne v. Woolfolk's Admx., 196 Ky. 550; Usher v. Moss, 50 Miss. 208; Love v. Law, 57 Miss. 596; McCroy v. Toney, 66 Miss. 233, 5 So. 392; Nobles v. McCarty, 61 Miss. 456; 35 C. J. 957, sec. 21.

The general rules of evidence govern the admissibility of evidence to prove and to disprove the relationship of landlord and tenant. To establish the relation, a lease entered into by the parties is admissible. So evidence of a demand for rent, or the payment of rent, or a note given therefor, is admissible to prove the relation.

35 C. J. 968, sec. 44; Longfellow v. Longfellow, 54 Me. 240; Rider-Ericson Engine Co. v. Fowler, 37 Misc. 810, 76 N.Y.S. 903; McLaren v. Hall, 26 Iowa 297; Adams-Newell Lbr. Co. v. Jones, 162 Miss. 517, 139 So. 315; Columbus & Greenville Ry. Co. v. Dunlap, 164 Miss. 709, 145 So. 646; N. O. & G. N. R. R. Co. v. Walden, 160 Miss. 102, 133 So. 241.

We submit that the lower court erroneously refused to permit the defendant to demonstrate, by written, recorded instruments, and by oral testimony, that Porter C. Chapman was the tenant of C. B. Chapman, as landlord, at the time the notes were executed, and thus refute the imputation that Porter C. Chapman was acting as the agent of C. B. Chapman in the farming of the lands in Sunflower County, Mississippi. We submit, with deference, that for this prejudicial error this cause should be reversed.

Neither husband nor wife, by virtue of the relationship, has power to act as agent for the other.

1 A. L. I., Restatement of Agency, page 65, sec. 22 (b); 30 C. J. 620, sec. 169.

Whether the husband was the agent of his wife is a question of fact to be found as any other fact. It is a fact to be proved by evidence, and not to be presumed.

30 C. J. 621, sec. 171; Jones v. Harrell, 110 S.C. 373, 35 S.E. 690; Virginia-Carolina Chemical Corp. v. Wisenbaker, 19 Ga.App. 528, 89 S.E. 1053; Roper v. Cannel City Oil Co., 68 Ind.App. 637, 121 N.E. 96; McLaren v. Hall, 26 Iowa 297; Farley v. Stroeh, 68 Mo.App. 85; Atwood v. Meredith, 37 Miss. 635; Caldwell v. Hart, 57 Miss. 123; Johnson v. Jones, 82 Miss. 483, 34 So. 83.

The plaintiff was not entitled to judgment on the pleadings and the record, and the verdict of the jury is contrary to the overwhelming weight of the evidence.

Scott v. Peebles, 2 S. & M. 546; I. C. R. R. Co. v. Sumrall, 51 So. 546; 2 C. J. 636, 638; Runnels v. State, 154 Miss. 621,122 So. 769; East v. King, 77 Miss. 738, 27 So. 608; Galtney v. Wood, 149 Miss. 56, 115 So. 117; Fanchier v. Gammill, 155 Miss. 316, 124 So. 365; Woolbert v. Lee Lbr. Co., 5151 Miss. 56, 117 So. 354; Quiver Gin Co. v. Looney, 144 Miss. 709, 111 So. 107; Section 1943, Code of 1930, Section 2521, Code of 1906; Teasley v. Roberson, 149 Miss. 1188, 115 So. 211; Dorsett v. Breithaupt, 133 Miss. 457, 97 So. 756.

Cooper & Thomas, of Indianola, for appellee.

Were the lease contracts for the years 1917 and 1921 and the oral testimony as to subsequent years admissible? We respectfully submit that in our opinion this is the only real question in this record. No leasing of lands between husband and wife is valid as against third persons unless in writing and duly filed for record. The appellant contends a relationship of landlord and tenant existed for the year 1931 and yet admits that there, was no written, recorded lease contract for the year 1931.

Section 1943, Code of 1930.

We submit with confidence that the lower court was correct in sustaining objections to any oral testimony about the wife renting the husband this land and, of course, the old written contracts were restricted to their own years and were not even shown to be on the same land, but even if they had been on the same land they could not be competent on a question involving a 1931 relationship.

Section 1944, Code of 1930.

Both of these statutes have been part of our law for many generations. They are clear and unambiguous in their language. Their intent to prevent the evils shown in this record is likewise evident. The smooth running of credit for agricultural Mississippi depends upon the purposes of these two statutes.

It prevents the wife from making the very claim she here at the eleventh hour sought when she...

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