McCauley v. McElroy

• Decision Date: 01 November 1917
• Docket Number: (No. 741.)
• Citation: 199 S.W. 317
• Parties: McCAULEY et al. v. McELROY.
• Court: Texas Court of Appeals

199 S.W. 317

McCAULEY et al. v. McELROY.

(No. 741.)

Court of Civil Appeals of Texas. El Paso.

November 1, 1917.

Rehearing Denied December 13, 1917.

Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.

Suit by E. A. McElroy against C. A. McCauley and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Smoot & Smoot, of Wichita Falls, and Williams & Neethe, of Galveston, for appellants. Brookreson & Howell, of Benjamin, for appellee.

HARPER, C. J.

Appellee, McElroy, brought this suit in the district court of Knox county against C. A. McCauley and P. G. Cooley, of Knox county, Will Avants, of King county, and Mrs. Eliza Kempner, of Galveston county, the said Kempner doing business under the trade name of H. Kempner.

It was alleged that in September, 1915, Mrs. Kempner was the owner of two tracts of land situated in Knox and King counties, aggregating 740 acres, and on September 28, 1915, plaintiff rented said lands from her by an oral contract, Mrs. Kempner acting through her agent, E. C. Couch; possession of said lands to be given as soon as the crops growing thereon could be harvested, and not later than January 1, 1916; that relying upon the contract, he incurred a large expense in preparing to cultivate a crop upon said land; that after he had so rented the land, and some time during the fall of 1915, defendants, acting together, formed some kind of a fraudulent agreement or conspiracy to withhold the possession of the land from plaintiff, and to deprive him of the use and benefit thereof, and to prevent him from cultivating and raising a crop thereon during the season of 1916; that in accordance with such unlawful and fraudulent agreement and in disregard of the plaintiff's rights in and to said lands under and by virtue of his rental contract, and with full knowledge upon the part of each of the defendants of his rental contract, the said C. A. McCauley, acting together with, and under authority from, Mrs. Kempner, entered upon 100 acres of the land and unlawfully withheld the same from him and refused him the possession thereof and the defendants, Avants and Cooley, acting together with, and under authority from, Mrs. Kempner, unlawfully entered upon 640 acres of land, and unlawfully took possession of the same and refused to allow plaintiff to take possession thereof and use and cultivate the same under his rental contract, with the exception, however, of 100 acres, with one tenant house thereon which they also attempted to withhold from him and the possession of which he was able to obtain only after considerable trouble and expense; that on account of said wrongs, injuries, and trespasses, all of which were committed in Knox county by the defendants, acting jointly, plaintiff was wrongfully deprived of the use and benefit of 640 acres of the land with improvements thereon, and prevented from raising a crop thereon for the 1916 season and thereby greatly damaged.

Judgment was sought against the defendants, jointly and severally, for his damage in the aggregate sum of $10,360. Mrs. Kempner filed a plea, setting up her privilege to be sued in Galveston county. The cause coming on for trial, Mrs. Kempner first presented her plea of privilege, and the appellee demanded that the issues of fact raised by the plea be submitted to the jury, along with the main issues in the case. The court thereupon overruled the plea of privilege and the cause proceeded to trial upon its merits. After the evidence had all been introduced, Mrs. Kempner again renewed her plea of privilege and the same was again overruled by the court. Judgment was entered in favor of McElroy against the defendants, jointly and severally, in the sum of $3,491.50, from which this appeal is perfected.

The first assignment of error presented by the appellant Mrs. Kempner relates to the action of the court in overruling her plea of privilege. If there is any authority for the prosecution of this suit in Knox county, it is found in the ninth subdivision of article 1830, R. S., which authorizes suits to be brought out of the county of the defendant's domicile, where the foundation of the suit is some crime, or offense, or trespass, for which a civil action in damages may lie, in which case the suit may be brought in the county where such crime, or offense, or trespass was committed. It thus becomes necessary to inquire what is the foundation and nature of the liability of Mrs. Kempner under the facts recited. If she committed a trespass in Knox county in person, or was a party to a trespass committed in Knox county by personal representative, then her plea of privilege was properly overruled. In determining whether or not she was guilty of a trespass, it becomes pertinent to inquire what were the respective rights and obligations of the parties under the rental contract executed by her to plaintiff, for if there was any trespass within the meaning of the statute quoted, it was committed in connection with the leasehold interest acquired by McElroy in the Knox county land. The principal covenant on the part of the landlord in a rental contract is that his tenant shall have the quiet enjoyment and possession of the premises during the continuance of the term, and an engagement to this effect on the part of the lessor is always implied, unless such implication be excluded by the express provisions of the contract. 1 Taylor's Landlord & Tenant (9th Ed.) pars. 45, 304; 24 Cyc. 1057, 1058. This covenant, whether express or implied, means that the tenant shall not be evicted or disturbed by the lessor or by persons deriving title from him. 1 Taylor's Landlord & Tenant, pars. 176, 305, 307. The entry by McCauley, Cooley, and Avants breached the covenant for quiet enjoyment implied in Mrs. Kempner's lease to McElroy, but the jury has found that she in no wise participated in the entry of her codefendants, and did not participate with them in withholding possession from McElroy. A trespass has been defined as "any unauthorized entry upon the realty of another to the damage thereof." 3 Bouvier's Law Dictionary, Rawle's Third Revision, p. 3316. In 38 Cyc. 994, it is said:

"Direct injury to realty of another is a trespass as is any wrongful interference with possession."

Mr. Taylor, at paragraph 765 of his work quoted above, says that the right to land is exclusive, and every unwarranted entry by a person on the land of another without the owner's leave, unless by authority of law, is a trespass.

The defendants McCauley, Cooley, and Avants were in possession of the lands on January 1, 1916, and refused to yield possession to the plaintiff. This constituted an unauthorized entry upon realty belonging to plaintiff to his damage, and was undoubtedly a trespass on the part of McCauley, Cooley, and Avants. There are no accessories in trespass, but all who are concerned with a trespass in any manner are principals. 26 Am. & Eng. Ency. Law (1st Ed.) p. 580; Olsen v. Upsahl, 69 Ill. 173. So, if Mrs. Kempner in any manner participated in the unlawful entry by McCauley, Cooley, and Avants, then she would be a principal in the trespass, a joint tort-feasor; but the facts found by the jury and the record as a whole fail to disclose any act, conspiracy, or agreement of any kind upon her part, which would directly connect her with the acts of McCauley, Cooley, and Avants. The jury has expressly found that she did not in any wise conspire with them, which is the ground alleged in the petition for the purpose of fixing venue in Knox county. They were not her agents, but were acting strictly for themselves. We therefore hold that the evidence in the record shows no trespass has been committed by her in Knox county, and that therefore her plea of privilege to be sued in Galveston county should be sustained.

This view is upheld by the cases of Hilliard Bros. v. Wilson, 76 Tex. 180, 13 S. W. 25, and Wettermark v. Campbell, 93 Tex. 517, 56 S. W. 331. In the last-mentioned case, Hilliard v....