Johnson v. Moxley

• Decision Date: 23 June 1927
• Docket Number: 4 Div. 311
• Citation: 216 Ala. 466,113 So. 656
• Parties: JOHNSON v. MOXLEY.
• Court: Alabama Supreme Court

113 So. 656

216 Ala. 466

JOHNSON v. MOXLEY.

4 Div. 311

Supreme Court of Alabama

June 23, 1927

Certiorari to Court of Appeals.

Action by J.B. Moxley against W.A. Johnson and B.M. Kendrick. Judgment for plaintiff against defendant W.A. Johnson was affirmed by the Court of Appeals (113 So. 651) and said defendant applies for certiorari to review and revise the decision of the Court of Appeals. Writ granted.

Brown J., dissenting in part.

Powell & Hamilton, of Greenville, for appellant.

Frank B. Bricken, of Luverne, for appellee.

SOMERVILLE J.

This is an action against W.A. Johnson and B.M. Kendrick, jointly for money due for the use and occupation of a tract of land known as the Simmons place, and also, on the common counts for money due by account, by account stated, and for money had and received to plaintiff's use.

The material facts stated in the opinion of the Court of Appeals are as follows:

Sarah Simmons, the owner of a farm, leased it by a contract in writing to D.C. Roach for a term of 5 years, beginning January 1, 1916, at an annual rental of $212.50. On February 16, 1916, Roach transferred this lease to the defendant Johnson, who occupied and cultivated the land during the years 1916, 1917, and 1918, paying the annual rentals to the administrator of Sarah Simmons, who died in 1916. "The dispute arises about the unpaid rent for 1919 and 1920. Johnson claims and so testifies and presents evidence in corroboration that on December 18, 1918, he sold the lease to Kendrick, which he transferred by indorsement dated January 15, 1919, which was to be the date of possession, and that he then and there delivered the original lease with the indorsements to Kendrick, who paid him a cash consideration of $403, and, in addition thereto, was to pay the annual rental when due. Kendrick, the other defendant, denies this and says that the truth is the lease was not purchased by him at all, but that he rented the land from Johnson for the years 1919 and 1920 for an aggregate cash rental of $403 which he then and there paid by check to Johnson. There was much evidence pro and con, tending to support each contention, and, when the evidence was all in, the court, at the request of defendant Johnson, instructed the jury: 'If you believe the evidence, you should find for the plaintiff as against defendant Kendrick.' Notwithstanding this charge there was a verdict for plaintiff as against Johnson and ignoring defendant Kendrick."

The gist of the opinion and conclusion of the Court of Appeals is found in this statement:

"It will be noted how important to a correct conclusion is the finding of the jury as to the truth of the transaction between Johnson and Kendrick. If Kendrick's statement is true, then Johnson occupied through him the land for 1919 and 1920, and, independent of a finding against Kendrick, would be liable separately for the rent for 1919 and 1920. This issue was by the jury found against the defendant Johnson. *** We cannot agree to the proposition that the renting of the land to Kendrick by Johnson for the years 1919 and 1920 constituted Kendrick the assignee and not a subtenant."

In this view of the law the learned court is in error. In Johnson v. Thompson, 185 Ala. 666, 64 So. 554, we pointed out the well-settled distinction between a tenant's assignment of his lease, and his subleasing to a subtenant; and it was distinctly held that, if the lessee parts with his entire interest in the term, it constitutes an assignment, and not a subletting, although the transfer is in form a sublease. See, also, Bancroft v. Vizard, 202 Ala. 618, 81 So. 560. As to this the cases are legion, and all the authorities agree. 35 Corp.Jur. 988-990, §§ 80, 82; 16 R.C.L. 824, §§ 319, 320; Id. 869, § 373; 117 Am.St.Rep. 97, note.

"According to numerous decisions the same instrument may in law create an assignment of the term, as between the original lessor and the assignee, and also the relation of landlord and tenant between the parties to the second demise, but this is the result of the contract only, and not conclusive on the original lessor, who comes into privity of estate by reason of the grant or assignment of the whole term. Other cases, however, do not recognize this distinction, and treat the transaction, even as between the parties, according to its legal effect as an assignment, if the entire interest of the lessee in the term is transferred, and determine their respective rights upon the basis of an assignment, though it is in the form of a lease." 16 R.C.L. 825,§ 320.

We quote with approval the following as a correct statement of the law:

"Where a lessee of land leases the same land to a third party, the question has often arisen whether the second lease is in legal effect an assignment of the original lease, or a mere sublease. The question has frequently, and probably most generally, arisen between the lessee and his transferee, and much confusion will be avoided by observing the distinction between those cases and cases where the question has been between the transferee and the original landlord. In the latter class of cases, the rule is well settled that, if the lessee parts with his whole term or interest as lessee, or makes a lease for a period exceeding his whole term, it will, as to

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