Davis v. First Nat. Bank

• Citation: 258 S.W. 241
• Decision Date: 10 January 1924
• Docket Number: (No. 1555.)
• Parties: DAVIS v. FIRST NAT. BANK OF EL PASO.
• Court: Court of Appeals of Texas

258 S.W. 241

DAVIS v. FIRST NAT. BANK OF EL PASO.

(No. 1555.)

Court of Civil Appeals of Texas. El Paso.

January 10, 1924.

Rehearing Denied February 7, 1924.

Appeal from El Paso County Court, at Law; J. M. Deaver, Judge.

Action by the First National Bank of El Paso against R. F. Davis and others. Judgment for plaintiff, and the named defendant appeals. Affirmed.

See, also, 248 S. W. 119.

Steve Lattner, of El Paso, for appellant.

J. A. Gillett, of El Paso, for appellee.

HIGGINS, J.

Appellee sued P. L. Fison upon a note in its favor executed by Fison and to foreclose a chattel mortgage executed by him securing the note. Roy C. Hughes and appellant Davis were made parties defendant as claiming an interest in the mortgaged property.

The material facts are as follows:

On February 23, 1917, the Raynolds Realty Company leased to E. E. Ryan certain premises for five years at a stipulated monthly rental. On November 5, 1918, Ryan assigned the lease to the appellant with the consent of the lessor.

"On the 17th day of January, 1921, by written instrument of that date, the said R. F. Davis transferred all of his interest in the said lease to P. L. Fison; and this transfer was known to the Raynolds Realty Company, the owner of the premises involved, but the said Raynolds Realty Company refused to release the said R. F. Davis from his obligation to pay the rent. That all of the aforesaid transfers of the said lease were called `subleases' by all the parties thereto, but each transfer was for the full unexpired term of the lease. * * *

"The transfer from Davis to Fison was by a written instrument which was not placed of record and was for the full unexpired term of said lease, but was called in said instrument a `sublease,' and under the terms of said written transfer Fison agreed to be bound by the provisions of the original lease."

On January 17, 1921, Davis also sold and delivered to Fison certain personal property upon the premises, being the same upon which appellee sought to foreclose.

On June 7, 1921, Fison executed and delivered to appellee the note sued upon, together with a mortgage upon such property to secure the payment of the note.

Fison failed to pay the rental for June and July, 1921, amounting to $600, and Davis was compelled to pay same, whereupon Fison turned the property back to Davis, who subsequently sold same to Hughes.

The case was tried without a jury and judgment rendered in favor of appellee as prayed for, whereupon Davis appeals. Findings of fact and conclusions of law were not filed by the trial court.

Appellant claims that he has a landlord's lien upon the mortgaged property superior to the mortgage executed by Fison. His position is thus stated in the only proposition submitted in the brief:

"Where a lessee assigns his lease to a third party, and the lessor consents to the occupancy and use by the third party, but refuses to release the lessee and accept the third party as a tenant and look to him for the rentals, the third party becomes the tenant of the lessee, and the lessee the landlord of the third party, and the lessee has a statutory lien upon the property of the third party in the premises so let."

The controlling question in the case is: Was there an assignment of the lease by Davis to Fison or an underletting of the premises? If it was an underletting, Davis had a superior statutory landlord's lien. If it was an assignment, he had no lien, and re-acquired the mortgaged property subject to appellee's mortgage. In the determination of the question at issue none of the authorities prescribe the test announced in appellant's proposition.

In determining whether a transaction constitutes an assignment of a lease or a subletting, the test is that, if the tenant parts with the entire term of his lease, it is an assignment and he becomes an assignor, "but where the tenant by the terms, conditions or limitations in the instrument does not part with the entire term granted him by his landlord so that there remains in him a reversionary interest, the transaction is a subletting and not an assignment." Davis v. Vidal, 105 Tex. 444, 151 S. W. 290, 42 L. R. A. (N. S.) 1084; Forrest v. Durnell, 86 Tex. 647, 26 S. W. 481.

But as between the parties to the transaction this test is...