Maddox v. Hobbie

• Decision Date: 18 January 1934
• Docket Number: 3 Div. 77.
• Citation: Maddox v. Hobbie, 228 Ala. 80, 152 So. 222 (Ala. 1934)
• Parties: MADDOX v. HOBBIE et al.
• Court: Alabama Supreme Court

152 So. 222

228 Ala. 80

MADDOX v. HOBBIE et al.

3 Div. 77.

Supreme Court of Alabama

January 18, 1934

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill to establish and enforce a lien under a lease contract by Henry M. Hobbie and H. M. Hobbie Realty Company, Inc., against J L. Maddox. From a decree overruling a demurrer to the bill respondent appeals.

Affirmed.

L. A Sanderson, of Montgomery, for appellant.

Files Crenshaw, Jr., of Montgomery, for appellees.

KNIGHT Justice.

It appears from the bill in this cause that Henry M. Hobbie, one of the appellees, on the 30th day of August, 1930, was the owner of a certain storehouse, dwelling house, and some land connected therewith, or near thereto, in Montgomery county Ala., and about twelve miles from the city of Montgomery, on the Woodley road. On said day he entered into a lease contract with appellant, whereby he leased said property to appellant for a term commencing on December 1, 1930, and to run to December 1, 1931, at an agreed rental for the year of $200, payable $8.33 on the first of each month, "beginning December 1st, 1930, and extending through and inclusive of October 1, 1931, and $108.37 on the 1st day of November, 1931." The contract with reference to the term of the lease contained this provision: "It is understood and agreed that this lease is for the period from December 1, 1930, to December 1, 1931, and that the party of the second part (J. L. Maddox) has the privilege of renewing this lease for an additional five years from December 1, 1931, to December 1, 1936."

The lease contract also contained the following provision: "And as a part of the consideration of this lease, in order to secure the prompt payment of said notes as they become due by virtue of this lease, the said party of the second part hereby gives and executes to the said party of the first part this instrument as a lien upon any and all property owned by said party of the second part, whether exempt from execution or not, and hereby waives all right which he or she may have under the Constitution and laws of Alabama or any state in the United States of America, to have any of the property of the said party of the second part, whether exempted from levy and sale under legal process." (Evidently something omitted.)

The lease contract also contained an acceleration clause as to the payment of the rent, to the effect that, if the party of the second part should fail in business, or should "fail to pay any one of the above described notes or installments of rent at maturity, then all the remaining installments shall at once become due and payable, and the party of the first part may treat them as due and payable, without further notice to the party of the second part, this contract being sufficient notice," etc.

It further appears from the bill that the said Maddox entered into the possession of said property under said lease contract, and has continued in the possession and enjoyment of the same down to the time the bill in this cause was filed, viz., August 10, 1933.

It is also made to appear from the averments of the bill that the appellee Henry M. Hobbie, some time during the month of December, 1930, the exact day not appearing, sold and conveyed the property, leased to said Maddox, to the appellee H. M. Hobbie Realty Company, Inc.

It is averred that the said tenant, J. L. Maddox, failed to pay a large number of the installments of rent described in the lease at their maturities, and that there was rent past due at the time the bill was filed to amount of $328.16; that, under the provisions of the lease contract, the default had the effect of maturing all rent installments for the entire term. It appears that, with all installments treated as due, the amount owing by appellant at the time the bill was filed was the sum of $1,069.85, $125 of which represent installments remaining unpaid to appellee Henry M. Hobbie during the original term of the lease, and it is averred that the balance of said sum of $1,069.85 was due and owing to the appellee H. M. Hobbie Realty Company, Inc.

In the third paragraph of the bill, it is averred that the said Maddox is the owner of certain personal property, described in the paragraph, and all of which, except the designated live stock, is upon the property leased to the appellant. It may be here stated that a part of said personal property is a stock of general merchandise, and which is averred to be in the storehouse rented by Hobbie to said Maddox.

The complainants, the appellees here, prayed, among other things, that the court will decree that they have a lien upon any and all property owned by the defendant Maddox for the satisfaction of the sum due by virtue of the said lease, and specifically upon the property described as being the property of said Maddox, and that the court will order the same to be sold, or so much thereof as is necessary to satisfy the amount due the complainants under said lease.

The defendant Maddox demurred to the bill as a whole, and to each paragraph thereof, separately and severally, and to certain aspects of the bill hereinabove set forth. A number of grounds of demurrer are assigned.

This court has firmly committed itself to the rule that a demurrer addressed to the bill as a whole, and to each paragraph thereof separately and severally, is but a demurrer to the whole bill, and, if the bill contains equity in any of its aspects, the demurrer should be overruled. Wood v. Estes, 224 Ala. 140, 139 So. 331; Oden v. King, 216 Ala. 504, 113 So. 609, 54 A. L. R. 1413; Thompson v. Brown, 200 Ala. 382, 384, 76 So. 298; Hudson v. Hudson, 204 Ala. 75, 85 So. 282. And while the demurrant professes to direct his demurrer also to certain aspects of the bill hereinabove set forth, we are not advised by anything stated what those certain aspects were. However, the necessities of the case do not require us to dispose of the demurrer upon the theory that the "certain aspects" demurred to are not particularly designated.

It is earnestly insisted in brief of appellant that the lease contract, by its terms, ceased at the expiration of the first year, that is, on December 1, 1931, in as much as there was no renewal thereof. That the appellant was only given the privilege of renewing the lease for an additional period of five years; that when the appellant held over after the 1st of December, 1931 (to quote his language) "not having signed any more notes for the rental instrument, or executing any other or similar lease, he was a tenant at will or sufferance, and the relation of landlord and tenant existed, and the landlord would have his lien, but of course his lien would attach only to such livestock, cattle, of the defendant which grazed on the rented premises, and only on such personal property as enjoyed the protection of the rented premises."

The appellant might be right in his deductions and conclusions, if it could be held that the lease contract terminated on December 1, 1931, but, with the renewal agreement contained in the lease, coupled with the fact that the appellant held over after December 1, 1931, and has continued to hold the leased premises to the time of the filing of the present bill, can it be said that the appellant and appellees have not treated the contract as renewed for an additional term of five years from December 1, 1931?

This court, in the case of Tenn. C., I. & R. Co. v. Pratt Consolidated Coal Co., 156 Ala. 446, 47 So. 337, has in effect passed upon the question here presented, and adversely to the contention of appellant, that the lease terminated on December 1, 1931. The effect of the holding in that case was that an agreement to continue the lease after the expiration of the term provided for therein constituted a "present demise, which becomes operative immediately upon the expiration of the option." The learned justice, speaking for this court, observed: "It has been held that a lease for 10 years, with a provision that it should be renewed for 10 years longer, is a lease for 20 years. Hall v. Spaulding, 42 N.H. 259; Ranlet v. Cook, 44 N.H. 512, 84 Am. Dec. 96. The party holding over under the option holds under the original lease. Insurance Co. v. National Bank, 71 Mo. 58, 60, 61. As stated in one case, such a contract is 'an unconditional lease for the original term, and a conditional lease for the term thereafter,' and 'he holds for the additional term under the original lease.' Sheppard v. Rosenkrans, 109 Wis. 58, 85 N.W. 199, 83 Am. St. Rep. 886, 888."

In Maryland, where a lease for a longer period than fifteen years was prohibited by statute, the Court of Appeals of that state held that a lease for fourteen years, with a covenant to renew for another fourteen years, is in effect a lease for a longer period than fifteen years, and therefore that the lease came under the provisions of an act which made all rents reserved for a longer term than fifteen years redeemable. Stewart v. Gorter, 70 Md. 242, 16 A. 644, 2 L. R. A. 711. To the same effect are the holdings of the English courts. Watson v. Master, etc., of Hospital, 14 Ves. Jur. 324; Moore v. Clench, 1 C. D. 447; Lydiatt v. Froach, 2 Vern. 410.

In our recent case of Feidelson v. Piggly-Wiggly Alabama Co Inc., 221 Ala. 81, 127 So. 516, 517, after referring to the cases holding that a...