Dodson v. Moore

• Decision Date: 22 April 1925
• Docket Number: (No. 2465.)
• Citation: 272 S.W. 263
• Parties: DODSON v. MOORE et al.
• Court: Texas Court of Appeals

272 S.W. 263

DODSON v. MOORE et al.

(No. 2465.)

Court of Civil Appeals of Texas. Amarillo.

April 22, 1925.

Appeal from District Court, Knox County; J. H. Milam, Judge.

Action by E. P. Dodson against G. A. Moore and others. From the judgment, plaintiff appeals. Reversed and remanded.

D. J. Brookreson, of Benjamin, and Jas. P. Kinnard, of Haskell, for appellant.

J. S. Kendall, of Munday, for appellees.

HALL, C. J.

The appellant, Dodson, owned a farm in Knox county which he leased to G. A. Moore for the rental year 1923. Moore went into possession under the lease, and planted 90 acres in cotton, 25 acres in maize, cultivating them until they were laid by. He then headed the maize, leaving the stalks, and these stalks suckered out and made new heads. When the crop was in this condition, on the 1st day of November, 1923, Moore sold his interest in the maize patch to appellee C. R. Elliott, without the knowledge and consent of Dodson. Elliott immediately built a temporary fence upon the premises, separating the cotton from the maize stalks. After the fence was erected, Dodson learned the facts, and went to see each of the appellees. He protested against the assignment by Moore to Elliott, and the use of the premises by Elliott. He was informed by Elliott that the latter was going to turn his mules and horses into the field of maize, which was done. The appellant, Dodson, thereupon declared the rental contract forfeited, and filed this suit for possession of the premises, and had a writ of sequestration issued and placed in the hands of the sheriff on December 4, 1923. When the sheriff arrived at the farm he found the appellee Moore loading his household goods and preparing to move to California, and it was then that Dodson learned for the first time that Elliott had also bought the cotton crop growing on the premises, and had gathered and sold one bale of the cotton. In due time the appellant filed his replevy bond with the sheriff, took possession of the premises, and gathered the cotton.

No question is made as to the sufficiency of the pleadings, and we will not discuss the various items of damages set up by either party. Elliott claimed the property, as the purchaser from Moore, and reconvened for damages for the value of the cotton gathered by Dodson.

A trial before the court, without a jury, resulted in a judgment awarding Dodson the possession of the premises, and giving appellee Elliott judgment against Dodson for the value of the cotton, after deducting one-fourth as rents and the necessary expenses of gathering it.

The substance of appellant's contentions is that the assignment by Moore to Elliott, without appellant's consent, of the maize and cotton was such a breach of the lease as entitled appellant to declare the contract forfeited, and also entitled appellant, after the abandonment by Moore of the premises, to take possession of the farm and harvest the crops. He further insists that Elliott was a trespasser and is liable for all the damages proximately resulting from his illegal act in going into possession of the premises without appellant's consent. We think these contentions are sound and must be sustained.

The court's finding of facts is in part as follows:

"After said crops had become mature and a great portion of same had been gathered, the defendant G. A. Moore, without the knowledge or consent of plaintiff, about the 1st day of November, 1923, sold and assigned to said defendant C. R. Elliott the stalks remaining in the 25-acre maize patch, and said C. R. Elliott, by virtue of said sale, entered into possession of that portion of said premises whereon was situated said maize stalks, and segregated same from other portions of said premises by fences, and, after plaintiff had forbade him to do so, began pasturing of said premises, claiming the right so to do by reason of said sale of said maize stalks; that, after the sale of said maize stalks and segregation of same and before the filing of said suit by plaintiff in this cause, the defendant G. A. Moore, without the knowledge or consent of plaintiff, sold to said defendant C. R. Elliott the ungathered cotton remaining on said premises, and by virtue of same said defendant C. R. Elliott entered upon said premises and began the gathering and removal of said cotton crop therefrom, and gathered one bale of cotton of the market value of $134.75, and sold the same, tendering to the account of plaintiff the one-fourth of the cotton and cotton seed as rent therefor, which the plaintiff refused to accept, and refused to recognize said Elliott as tenant."

These findings are amply supported by the testimony. It is shown by the uncontradicted evidence of Dodson that, for the first time, on November 29th he visited the premises and found that the maize stalks had been sold to Elliott, who had separated that portion of the premises by a fence from the cotton field, and was pasturing it. Dodson further testified that he emphatically protested against the assignment of the lease and the use of the premises by Elliott, and the record shows that in less than five days he filed this suit to cancel the lease and recover his damages. It appears that, after the suit was filed and the sequestration issued, he learned that the tenant Moore had transferred the cotton crop to Elliott, who had already gathered one bale of cotton before the writ was served. The transfer of the premises in toto for the whole term of the lease was not a sublease, but is, in effect, an attempted assignment which, under Vernon's Sayles' C. S. art. 5489, was voidable at the option of the landlord. It is not contended that Dodson ever assented to the assignment; on the contrary, as found by the court, it was shown that he refused to accept as rent one-fourth of the value of the bale of cotton gathered by Elliott. That the assignment of the lease by Moore is, under the above-mentioned statute, voidable at the option of Dodson is too well settled to require discussion. Matthews v. Whitaker (Tex. Civ. App.) 23 S. W. 538; Forrest v. Durnell, 86 Tex. 647, 26 S. W. 481; Moser v. Tucker, 87 Tex. 94, 26 S. W. 1044; Birchfield v. Bourland (Tex. Civ. App.) 187 S. W. 422; Brown v. O'Conner (Tex. Civ. App.) 151 S. W. 339; Waggoner v. Snody, 36 Tex. Civ. App. 514, 82 S. W. 355; Gartrell v. State (Tex. Cr. App.) 61 S. W. 487; Gulf, etc., Ry. Co. v. Settegast, 79 Tex. 256, 15 S. W. 228; Tandy v. Fowler (Tex. Civ. App.) 150 S. W. 481; Steger v. Barrett, 58 Tex. Civ. App. 331, 124 S. W. 174; Allen v. Camp (Tex. Civ. App.) 101 S. W. 819; Slaughter v. Coke County, 34 Tex. Civ. App. 598, 79 S. W. 863; Stubblefield v. Jones (Tex. Civ. App.) 230 S. W. 720; Davis v. First National Bank (Tex. Civ. App.) 258 S. W. 241; Calhoun v. Kirkpatrick (Tex. Civ. App.) 155 S. W. 687; Brown v. Pope, 27 Tex. Civ. App. 225, 65 S. W. 43; Hudgins v. Bowes (Tex. Civ. App.) 110 S. W. 178; Waggoner v. Wyatt, 43 Tex. Civ. App. 75, 94 S. W. 1076; Wright v. Henderson (Tex. Civ. App.) 86 S. W. 799.

The evidence shows, and the court so found, that as soon as Dodson visited the leased premises and realized the condition existing there he vigorously protested against the assignment of the premises and their use by Elliott. This was on the 29th day of November; five days thereafter he filed this suit, and by writ of sequestration dispossessed Elliott. We think this is, without question, a sufficient declaration of forfeiture. 2 Tiffany L. & T. § 194j; 16 R. C. L. p. 1144, § 665; 35 C. J. p. 1075, § 248; The evidence shows that when the sheriff reached the premises with a writ of sequestration on December 4th the tenant Moore was moving his household goods off the premises and leaving for California. This is such an abandonment as entitled the landlord to take possession. Alsbury v. Linville (Tex. Civ. App.) 214 S. W. 492. Moore's breach of the lease contract by the sale of the crops to Elliott without the consent of the landlord, and the forfeiture declared by Dodson, terminated all interest which Moore had in the crops, and Elliott having purchased, in violation of the statute, could obtain no greater right thereto than Moore could convey by an illegal assignment. Under the facts in this case Dodson is entitled to recover the crops...