Fronkling v. Berry

• Citation: 88 So. 331,125 Miss. 763
• Decision Date: 09 May 1921
• Docket Number: 21470
• Court: United States State Supreme Court of Mississippi
• Parties: FRONKLING v. BERRY

88 So. 331

125 Miss. 763

FRONKLING v. BERRY

No. 21470

Supreme Court of Mississippi

May 9, 1921

1. FRAUDS, STATUTES OF. Verbal lease, constituting completed contract, held not unenforceable under statute.

A lessee, who has entered into possession of land under a verbal lease which was not to be performed within one year and has completed the contract, is liable for the rent; and when a lessor has exercised a contractual right to terminate a verbal lease at the end of a yearly period, this constitutes the lease a completed contract, and the mere failure to discharge mutual monetary obligations on a verbal contract otherwise completed does not render such contract unenforceable under the statute of frauds.

2. WAR. Alien enemy may defend and hence may recover property distrained.

A proceeding to recover property which has been seized under a distress for rent is essentially defensive in its nature, and an alien enemy, whose property has been seized under a distress for rent, may maintain the statutory proceedings to recover the property and assert such defensive rights as he may have under the lease.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county, HON. W. A. ALCORN, JR. Judge.

Action by Willis Fronkling against Mary C. Berry.

Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Case reversed and remanded.

John W Crisler and Montgomery & Crisler, for appellant.

The right of an alien enemy to defend a suit has never, so far as we have been able to find, been questioned by any court of last resort. We refer the court to the authorities collated under paragraph B, styled "Right to Defend," Ann Cas. 1917C, page 211. We set out here an extract from one of the opinions cited there, this extract being also here quoted:

"To allow an action against an alien enemy to proceed and to refuse to allow him to appear and defend himself would be opposed to the fundamental principles of justice. No state of War could, in my view, demand or justify the condemnation by a civil court of a man unheard." Robinson v. Continental Ins. Co., (1915) 1, K. B. (Eng.) 155, etc.

The supreme court of the United States speaking through Mr. Justice SWAYNE, in the case of McVeigh v. U. S. 20 U.S. (L. Ed.) 80, a case in which the trial court had ordered the answer of the respondent, an alien enemy, stricken from the files, and had granted a decree pro confesso made the following observation:

"In our judgement the district court committed a serious error in ordering the claim and answer of the respondent to be stricken from the files. As we are unaminous in this conclusion, our opinion will be confined to that subject. The order, in effect denied the respondent a hearing. It is alleged that he was in the position of an alien enemy, and hence could have no locus standi in that forum. If assailed there, he could defend there. The liability and the right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact, and the right administration of justice." (Citing authorities.)

"Whether the legal status of the plaintiff in error was or was not that of an alien enemy, is a point not necessary to be considered; because, apart from the views we have expressed, conceding the fact to be so, the consequences assumed would by no means follow. Whatever may be the extent of the disability of an alien enemy to sue in the courts of the hostile country (citing authorities) it is clear that he is liable to be sued, and this carries with it the right to use all the means and appliances of defense."

M. E. Denton, for appellee.

By his own testimony on page 35 of the record appellant shows that at the time this controversy arose, he was in jail. On page 89 and 99 it is shown that he had been committed to imprisonment by the president as a German alien enemy. Thereafter he filed a petition for habeas corpus in the federal court at Clarksdale but on November 11, 1918, after the armistice, this writ was dismissed by the federal court and appellant remanded to custody. Sometime after the armistice, he was admitted to bail and still later he was released without bail by the federal district attorney. But we are still at war with Germany and appellee is still under parol. These adjudications by the President and by the federal court were final and could not be questioned by appellant except by appeal. The rule is universal that alien enemies in time of war will not be granted any relief by the courts which constitute a part of the very Government which such enemy is seeking to destroy. This rule should apply with special force to spies, and I cannot agree that the fact of such enemy being in this county, rather than in the ranks of the enemy army affects this rule. The latest case I find on the subject is that of Heiler v. Goodwin Motor, etc., Co., (1918), 3 American Law Reports Annotated, 336 and note.

OPINION

W. H. COOK, J.

The defendant, Mrs. Mary C. Berry sued out a distress for rent against the plaintiff, Willis Fronkling, seeking to recover rent alleged to be due and in arrears by virtue of a verbal lease of certain lands for a term commencing in 1916 and ending with the close of the year 1918, and in her affidavit she claimed a lien upon certain agricultural products for the sum of three hundred dollars, the amount of rent due for the year 1918. Subsequently the plaintiff, appellant here, in the manner provided by statute, instituted his replevin suit in the circuit court to recover possession of the property, and upon the trial, in response to a peremptory instruction, there was a judgement for defendant, from which this appeal was prosecuted.

The testimony offered by appellant was substantially as follows That in the early part of the year 1916 he entered into a verbal contract with appellee to rent certain farm lands for the years 1916, 1917, and 1918, for an annual rental of three hundred dollars; that he entered into the possession of the property under this verbal lease, but, being dissatisfied with the condition of the farm and the improvements thereon, he proposed to appellee a change in the terms of the contract; that a new contract or agreement was finally consummated, under the terms of which appellant agreed to make, at his own expense, all the improvements necessary to put the farm in good condition, provided appellee would rent him the property for the additional years of 1919 and 1920, but in the event appellee declined to extend the lease for these two additional years, then she was to pay appellant the reasonable value of all improvements put on the property by appellant; that under this agreement appellant remained in possession of the property for the years 1916, 1917, and 1918, and during this time made valuable permanent improvements on the land to the value of...