Forrest v. Durnell

• Decision Date: 07 May 1894
• Citation: 26 S.W. 481
• Parties: FORREST v. DURNELL et al.
• Court: Texas Supreme Court

26 S.W. 481

FORREST v. DURNELL et al.

Supreme Court of Texas.

May 7, 1894.

Certified questions from court of civil appeals of fifth supreme judicial district.

T. C. Forrest against T. B. Durnell and others to enforce a landlord's lien. The court of civil appeals certified seven questions for decision.

J. E. Lancaster and M. B. Templeton, for appellant. Powell & Harding, for appellees.

STAYTON, C. J.

Forrest rented to Durnell, for the year 1891, 87 acres of land, for which the latter agreed to pay $4 per acre. Afterwards, Durnell, for the same term, rented to Harrison 50 acres of the land at $4 per acre for so much as he cultivated in grain, and for that cultivated in cotton to pay one-fourth of the cotton raised on the land so used. To the other defendants Durnell rented the residue of the land for the year, they agreeing to pay him as rent one-fourth of the cotton and one-third of the grain raised. On this state of facts the court of civil appeals has certified seven questions for decision, and, without considering them seriatim, the legal questions arising upon them will be considered in so far as they bear upon the rights of the parties.

The statute provides: "If lands or tenements are rented by the landlord to any person or persons, such person or persons renting such lands or tenements shall not rent or lease said lands or tenements during the term of said lease to any other person without first obtaining the consent of the landlord, his agent or attorney." Sayles' Civ. St. art. 3122. This statute has application to sublettings as well as assignments by lessees, and was doubtless enacted to secure to the owners of the lands the selection of persons to occupy and care for them, as well as to secure them the right to have none occupy their lands whose ability or willingness to pay the rents contracted for was not satisfactory. Under the statute, persons renting lands or tenements stand as would they, in the absence of such a statute, under contracts containing covenants against sublettings or assignments; and, on violation of the statute, the rights and remedies of the parties are the same as would they be under such covenants, for under the statute they are implied. Such remedies, however, a landlord may waive, and when he does so his rights and remedies for collection of rent, as well as the rights and liabilities of the lessee and of persons to whom he may assign or sublet, must rest as at common law, except as controlled by statute. At common law, in the absence of covenant forbidding, a lessee had the right to assign or sublet. The relation of landlord and tenant strictly does not exist unless there be a reversionary interest in the former, and out of this arises the distinction between assignments and under-leases. If a lessee parts with his whole term in all the rented premises, no reversionary interest remains in him, and a person taking through him is an assignee, liable to pay rent to the landlord as the original lessee contracted to pay. If he rents parts of it to different persons for the entire term, then such persons, to the extent of their several holdings, are also assignees, and in so far liable to the lessor, just as was the original lessee. Railway Co. v. Settegast, 79 Tex. 262, 15 S. W. 228; Tayl. Landl. & Ten. 443. A subtenant is one who leases all or a part of rented premises from the original lessee for a term less than that held by the latter, and in that case the lessee retains a reversionary interest. In such cases, at common law, a subtenant's property was subject to distress, while he was not liable on the contract between lessor and lessee. At common law, however, the landlord had no lien on his tenant's property until distrained; while, under the statute of this state, he has a preference lien on all the crops raised on the rented premises, unless the words, "property of the tenant," are to be so restricted as to embrace only the property of the original lessee. Sayles' Civ. St. art. 3107.

There may be some confusion in the decisions of the courts of this state as to the liability of the property of a subtenant for rent due by the lessee. It was held that a subtenant who occupied premises for the first two years of a term for three, and had paid to the lessee the rent due therefor, was not liable to the lessor on the contract between him and the lessee; and, further, that a crop raised by him during the third year, he having become the lessee for that year by express agreement of all parties, was not subject to distress to secure payment of rent to the landlord for the two preceding years during which he occupied the land as a subtenant; but no question arose whether crops raised by him during the time he held as subtenant would have been affected by him to secure...