Texas Rural Communities v. Avary

• Decision Date: 17 January 1938
• Docket Number: No. 4843.,4843.
• Citation: 113 S.W.2d 597
• Parties: TEXAS RURAL COMMUNITIES v. AVARY et ux.
• Court: Texas Court of Appeals

113 S.W.2d 597

TEXAS RURAL COMMUNITIES v. AVARY et ux.

No. 4843.

Court of Civil Appeals of Texas. Amarillo.

January 17, 1938.

Rehearing Denied February 21, 1938.

Appeal from District Court, Childress County; A. S. Moss, Judge.

Action in trespass to try title by S. N. Avary and wife against the Texas Rural Communities, a corporation, and others, in which named defendant filed a cross-action. Judgment for plaintiffs, and named defendant appeals.

Affirmed.

Homer C. DeWolfe and William G. Yarborough, both of Austin, for appellant.

Mahan & Broughton, of Childress, for appellees.

FOLLEY, Justice.

On January 26, 1935, the appellee, S. N. Avary, joined by his wife, executed and delivered to the appellant, Texas Rural Communities, a corporation, a lease for the term of five years upon 120 acres of land out of the southwest quarter of section 738, in block H, of the W. & N. W. Ry. Co. survey in Childress county, Tex. The lease contract contained certain covenants and conditions to be kept and performed by the lessee, and provided that if default should be made in any of such covenants and conditions that the lessor, at his option, might terminate said lease, re-enter upon said premises, and remove all persons therefrom. The consideration for the lease was the sum of $2,690, which was paid, and the further consideration of the lessee keeping and performing the covenants and conditions of the lease. Out of the $2,690 received by the appellee, the appellee was obligated to erect certain improvements upon the property for the use of the lessee. The appellant went into immediate possession of the premises through its sublessees, who were rural rehabilitation tenants. On November 18, 1936, the appellee notified the appellant and its sublessees that he had exercised his option to terminate the lease and demanded possession of the premises.

On December 12, 1936, the appellee filed a formal action in trespass to try title against the appellant and its sublessees. The appellant filed a plea in abatement, pleading the lease contract and claiming possession under the terms of the lease. A formal answer and cross-action was later filed by the appellant which included a plea of not guilty. In reply to this answer and cross-action, the appellee alleged the failure of the appellant to comply with the terms of the lease and asserted his right of forfeiture under the terms thereof.

The case was submitted to a jury upon special issues. The jury found: (1) That the appellant and its sublessees had failed to farm the land in question in a good workmanlike and farmerlike manner, according to approved practices; (2) that the appellant failed to keep the premises in as good condition as they were at the time of the execution of the lease; (3) that the appellant and its tenants committed waste of said premises; and (4) that the appellee was injured thereby. In response to these findings, the court rendered judgment for the appellee for the land and premises in question and for writ of possession, denying the appellant any relief on its cross-action. The Texas Rural Communities, without the joinder of its codefendants below, prosecutes this appeal to this court.

In its first assignment the appellant alleges that an action in trespass to try title was not the proper remedy for the appellee and attacks the authority of the trial court to render judgment under such a plea. The theory upon which the appellant bases such a contention is that the appellee had no possessory right to the land in question until the lease contract was canceled in a suit for such purpose. We agree with appellant's contention that before an action in trespass to try title will lie, that the claimant must have some possessory right in the premises. However, we think it is just as well established that an action in trespass will properly lie where a lease contract has terminated, either by expiration of time or by a breach by the lessee of the conditions and stipulations of the contract itself. The lease in question not only provided the conditions to be fulfilled by the lessee, but further provided that the failure to carry out such conditions would operate as a forfeiture of the lease and confer upon the lessor the right of re-entry of the premises. The lease contract contains the following provisions:

"The Lessor, for and in consideration of the sum of One Dollar ($1.00) lawful money of the United States of America, in hand paid by Lessee, the receipt whereof is hereby acknowledged and confessed; and in further consideration of the rent, promises covenants and agreements herein reserved and contained on the part of the Lessee to be paid, kept and performed.

"Lessee hereby covenants and agrees that it will * * *

"(b) Occupy and farm the demised premises during the whole of the term of this Lease in a good workmanlike and farmerlike manner, according to approved farming practices;

"(c) At its own cost and expense, keep all and singular the said demised premises and appurtenances in as good condition as the same are now, or may be put into, reasonable use and wear thereof and damage by the elements excepted;

"In consideration of the aforementioned rental payment and of these covenants, and the performance of these agreements herein contained, Lessor further agrees that Lessee shall and may at all times during the term of this lease peaceably and quietly have, hold and enjoy the said demised premises, with the appurtenances, without any manner of let, hindrance, suit, or interference of or from the Lessor or any other person or persons whomsoever.

"Provided always, that if default should be made in any of the covenants and agreements herein contained on the part of the Lessee to be kept and performed, then and from thenceforth, it shall be lawful for the Lessor, at his option, to terminate this Lease, to re-enter into and upon the said demised premises, and the whole thereof; and the same to have again, repossess, and enjoy as in his former state and to remove all persons therefrom.

"This agreement is intended to be, and shall be construed as a Five (5) year Lease. The rights of the Lessee shall continue in force and effect so long as the terms, provisions and conditions hereof are performed."

A condition subsequent is defined in 12 Tex.Jur. 126 as follows: "A condition subsequent is one which operates upon some estate already created and vested, and which, if not performed, may defeat it at the election of the grantor."

This rule has been announced in the following cases: Community of Priests of St. Basil v. Byrne et al., Tex.Com.App., 255 S.W. 601; Colvin v. Tomlinson et al., Tex.Civ.App., 293 S.W. 313; South Texas Telephone Co. et al. v. Huntington et al., 104 Tex. 350, 136 S.W. 1053, 138 S.W. 381; Daggett v. City of Ft. Worth et al., Tex.Civ.App., 177 S.W. 222; and Stevens et al. v. Galveston, H. & S. A. Ry. Co., Tex.Civ.App., 169 S.W. 644.

The jury found that the appellant and its sublessees had violated three distinct provisions of...