Johnson v. Gurley

• Decision Date: 21 November 1879
• Citation: 52 Tex. 222
• Parties: JOHN D. JOHNSON v. E. J. GURLEY ET AL.
• Court: Texas Supreme Court

52 Tex. 222

JOHN D. JOHNSON

v.E. J. GURLEY ET AL.

Supreme Court of Texas.

Nov. 21, 1879.

APPEAL from McLennan county. Tried below before the Hon. X. B. Saunders.

John D. Johnson, appellant, entered into a contract with E. J. Gurley, one of the appellees, then acting as the agent of J. W. Lapsley and others claiming the Thomas de la Vega elevenleague grant of land opposite the city of Waco, wherein it was stipulated that appellant should remain upon the grant and hold it as the tenant of Lapsley and those claiming by community of interest with him, and that he would not yield the possession thereof to any adverse claimant. It was further stipulated that Johnson should reside upon the grant and use it at pleasure for pasturage and farming purposes, and that he might cut, use, and consume so much of the timber as might be necessary for his convenience and comfort upon his ranche or farm, but that he should not sell or otherwise dispose of any growing timber from the land. It was further stipulated that appellant should have the right to purchase any portion of the grant, including his improvements, not to exceed eleven hundred and seven acres, at the value of the land in its natural state, without regard to improvements; but if he should decline to purchase, then, at the termination of his tenancy, Lapsley and those claiming with him should pay appellant the full value of his improvements, including dwellings, out-houses, cleared lands, fences, &c., such value to be ascertained in the manner designated in said contract. March 19, 1875, Gurley et al. instituted their suit in the District Court of McLennan county against Johnson, alleging breach of the contract of tenancy on his part, and praying for possession, damages, and rents from the date of the breach as alleged. The particular breach assigned was, that Johnson had cut down and destroyed a large amount of timber on the eleven leagues, and on the portions thereof held and occupied by him, and had cut the same into cord-wood and rails, and sold the same in violation of the contract; that he had cut down and destroyed and converted to his own use a large quantity of timber which was not necessary for his convenience and comfort, and not so used by him on his ranche or farm, and that the same was growing timber. Appellees also claimed rents, from the date of the contract, at the rate of $100 per annum.

April 8, 1875, Johnson answered with general demurrer and general denial, and pleaded specially the contract set out by appellees. He specially denied that he had ever violated any of its provisions, and averred that he had always held, and still held, as the tenant of appellees; that in pursuance of said contract he had made permanent and valuable improvements on the land in controversy, and had cleared, fenced, and put in cultivation about one hundred acres of the land, and that these several improvements were of the reasonable value of $1,396. Johnson, in his pleading, tendered back the land to appellees, and claimed the value of his improvements according to contract.

At the Fall Term, 1876, a trial was had, resulting in a verdict for appellees for the possession of the land, and also for $750 for rents, ignoring appellant's claim for improvements. Judgment of the court accordingly entered.

Appellant moved for a new trial on the grounds (1) that the verdict was contrary to the law, (2) that it was contrary to the evidence, and (3) that the verdict was for rent alone and excessive, and on other grounds, not here stated because not referred to in the opinion. Motion for new trial overruled. Notice of appeal, assigning as error the action of the court in overruling his motion for a new trial.

Clark & Dyer, for appellant.

I. The verdict is excessive, even if appellees had a right to recover any rents at all; and the latter right is denied.

II. Was there any ground of forfeiture by reason of breach of covenant or contract? Such forfeitures are not favored in the law, and courts always save them if it can be done. (1 Wash. on Real Prop., 2d ed., 317; Spear v. Fuller, 8 N. H., 174;Meni v. Rathbone, 21 Ind., 454; Doe v. Stevens, 3 B. & Adol., 299.) And they are never construed to defeat or determine a lease, unless there is some proviso or condition contained in the lease giving an express right of termination and reëntry. (1 Wash. on Real Prop., 2d ed., 318; Dennison v. Read, 3 Dana, (Ky.,) 586; Delaney v. Ganong, 5 Seld., (N. Y.,) 9; Den v. Post, 1 Dutch., (25 N. J. Law,) 292.) Even a breach of condition--and the stipulation as to cutting and selling growing timber is not a condition-- does not, of itself, operate like a conditional limitation to determine the estate, but a reëntry must be actually made, until which the estate remains in the lessee in the same manner as before. (1 Wash. on Real Prop., 317; Fifty Associates v. Howland, 11 Met., 99; Western Bank v. Kyle, 6 Gill, 343; Proctor v. Keith, 12 B. Monr., 252; Doe v. Birch, 1 M. & W., 402; Garner v. Hannah, 6 Duer, 262.)

III. Appellant's estate was not determined by either the alleged breach of contract or the notice to quit, but continued, as it began, certainly to the commencement of this suit, March 19, 1875, if not to the present time.

IV. Appellant's tenancy being rent free ab initio, he cannot be chargeable with rents until after the final termination of his tenancy.

V. If such tenancy was, in fact, terminated by the commencement of this action, and rents thereafter accrued are recoverable in this action, then appellant could not be chargeable with more than the rents for 1875 and 1876; and appellees allege in their petition that the rents are of the annual value of $100, by which they must abide.

Walton, Green & Hill and Sleeper, Jones & Kendall, for appellees.--When a person is put into possession of land under a written contract, rent free, with permission to cultivate and use land and timber for farming and family purposes until a different contract in writing is entered into, with these expressed stipulations in the lease, viz.:

First. That the lessee shall not cut down, or permit to be cut down, any growing timber for sale.

Second. That when the lessor shall tender to the lessee a warranty title to the land, the lessee shall have the right to elect to buy the land at its value unimproved; and in case the lessee declines to buy, he shall sell to the lessor, and the lessor shall have the privilege of buying, at their value, the improvements made on the land by the lessee; and while the lessee is in possession he cuts down growing timber and sells it, the same not being necessary for farming or...