Schultz v. Spreeain

[210] Ophtioh.— The first four assignments of error, in connection with the summary statement of the question in dispute, as agreed upon by the parties, that the judgment was correct and should be affirmed, unless upon the foregoing “ facts the defendant is protected by his payment of the rent to Kieke,” present for our consideration the effect of judicial proceedings authorizing the sale for partition, the sale and deed for the land to the plaintiff, as affecting the rents of the land for the year 1873. The principles controlling the case we regard as elementary and without argument. We hold: 1. The partition proceedings affected all contracts for lease made pendente lite by the defendant Kieke; lessees under him took subject to the rights of the parties to the suit. Schultz’s lease (if valid for over twelve months by parol) was subordinate to the rights of the plaintiff in the partition suit. Lee v. Salinas, 15 Tex., 497, and authorities cited. 2. Kent is a yearly profit on money, etc., issuing out of the lands for the use (3 Kent, 460), and is owing to the owner of the reversion (Id., 463), usually termed the landlord ; this rule obtains as well when a part of the leased lands are sold pending the term as when the whole is disposed of. 3 Kent, 469. 3. The sale of a part of the premises severs, as to that sold, the relation of landlord and tenant as between the original lessor and the tenant. An apportionment follows as a result of the sale without further stipulation. As to that sold the tenant owes rents (or fealty) to the new landlord for that part owned by him (this rule is an exception to that urged by appellant that contracts are not generally divisible). 3 Kent, 469, 470; Greenl. Cruise, title 28, ch. 3, sec. 32; Bank of Pennsylvania v. Wise, 3 Watts, 395, and cases cited. 4. Rents not due at the sale go to the owner of the reversion. A parol contract otherwise has been held inadmissible to control this as the legal effect of a sale of the [211] land. Greenl. Cruise, title 28, ch. 3, sec. 32, and cases cited. 5. In sales for partition, and made in partition proceedings, the purchaser takes all the interest of all the co-tenants in the land, the subject of such proceedings. Plaintiff, by his purchase, became entitled to the full ownership in the lands, and of all future payments of rents thereon, as against all the parties to the partition suit, against Kieke and the plaintiff. Freeman on Co-tenancy and Partition, sec. 548, and cases cited. 6. Whatever may have been Schultz’s rights, had he claimed as against plaintiff the right of paying him. the rent in kind, he did not assert such right. He has placed his defense upon his payment to Kieke, repudiating his fealty to the landlord. 3 Kent, 469, 470; Brown v. Adams, 35 Tex., 450. 7. Schultz was notified promptly by plaintiff of his claim as landlord, and he remained a tenant on the land, not as a trespasser, owing rent to the owner of the reversion; distress by statute is allowed to the landlord against the tenant for rent. P. XX, art. 5028; Mathews v. Burke, 32 Tex., 433. Proceedings for the rent were properly taken against Schultz; Kieke was not a necessary or proper party. He was not liable, either by contract or from actual tenancy. 8. The rents for farm lands being due, as in this case, at the end of the year, or at the gathering of the crop, there were no back rents claimed or adjudged to plaintiff. The rents claimed were not past due at plaintiff’s purchase. 9. But on the theory of apportionment suggested, the evidence shows that Kieke had the rents up to" January 1, 1873; that in that month the land was allowed the heirs of C. A. Kieke, whose rights were conveyed to the plaintiff June 10 of the same year; so that Kieke’s interest could not have extended into the year to any appreciable extent, and plaintiff’s recovery was proper. 10. The record recites that by proper proceedings the case was removed to the county court of Washington [212] county for trial on its merits. From this it will not be assumed that it was by certiorari/ the authority cited is, therefore, in point. The error affects only the irregularity in the judgment to that extent. For the error imposing ten per cent, damages, the judgment below should be reversed, and the judgment should be entered as below, save as to such damages. Appellee to pay costs of appeal.