Meyer v. Livesley

• Decision Date: 28 November 1904
• Citation: 45 Or. 487,78 P. 670
• Parties: MEYER v. LIVESLEY et al.
• Court: Oregon Supreme Court

78 P. 670

45 Or. 487

MEYER v. LIVESLEY et al.

Supreme Court of Oregon

November 28, 1904

Appeal from Circuit Court, Polk County; R.P. Boise, Judge.

Suit by J.W. Meyer against John Vincent and others. A judgment was rendered in favor of plaintiff, and defendants T.A. Livesley and others appeal. Reversed and dismissed.

W.T Slater and Wirt Minor, for appellants.

J.H McNary and Oscar Hayter, for respondents.

BEAN J.

This is a suit to restrain the defendants from trespassing upon or interfering with the plaintiff's possession of a hopyard. On March 7, 1900, I.M. Simpson, being the owner of a certain tract of land in Polk county, upon which the hopyard in question was situated, leased the yard, with the improvements thereon, consisting of dry kilns, hop poles, etc., to the defendants, for the years 1900 to 1904, inclusive. On October 25, 1902, the defendants sublet the yard, together with the hop kilns, bailer, and farming implements mentioned in the lease from Simpson to them, to W.D. Huston; agreeing to furnish Huston one of the dwelling houses on the Simpson place, or to remodel another building thereon, and the use of Simpson's horses in the cultivation of the hops at a certain stipulated rate per day, in consideration of which Huston agreed to pay them, as rental, one-fourth of the "average quality" of the hops produced on the land during the years 1903 and 1904. On January 11, 1904, Huston assigned to the plaintiff all his right and interest in and to the lease or contract between himself and the defendants. This assignment was not recorded, and on January 23, 1904, the defendants, without knowledge or notice thereof, entered into a new lease with Huston for the current year; taking from him a mortgage on his interest in the crop to be grown during that year to secure a balance due for advances made the previous year. It was stipulated in the new lease that, in case of a violation of any of its terms by Huston, the defendants should have the right to re-enter and take possession of the hopyard, to complete the cultivation of the crop, and harvest and sell it; paying over the surplus, if any, to Huston. In March, 1904, the defendants attempted to enter and take possession of the hopyard on account of a violation of the provisions of the lease or agreement between them and Huston, when this suit was brought by the plaintiff to enjoin them from doing so.

The only question we deem it necessary to consider is whether the lease from the defendants to Huston, made in October, 1902 was assignable by Huston without the consent of the defendants. The plaintiff claims title under such an assignment, but, unless Huston had authority to assign the lease to him, he has no standing in court, and the other questions become immaterial.

As a general rule, the power of assignment is incident to the estate of a lessee of real property, unless it is restrained by the terms of the lease. Wood, Land. & T. p. 529; Taylor Land. & T. (9th Ed.) § 402. But a lease of land upon shares including the use of buildings, farm implements, stock, and other personal property, is regarded as a personal contract, and not assignable without the consent of the lessor, because the amount to be received by the lessor and the care of the property depend upon the character, industry, and skill of the lessee. Taylor, Land....