Hicks v. Martin

Philips, P. J. Two questions arise on this record: first, as to the action of the circuit court in holding that the issue on the plea in abatement was properly retriable on the appeal taken by plaintiff from the justice’s, court; and, second, in holding that the defendants were not liable on the merits. I. Section 3092, Revised Statutes, provides, that: “ The proceedings on all attachments issued under this chapter (concerning landlords and tenants) shall be the same as provided by law in cases of suits by attachment.” Section 481, concerning attachments in justices’courts, declares, that: “The provisions of law governing attachments in courts of record shall apply to attachments before justices of the peace, so far as the same may not be inconsistent with the provisions which are specially applicable to the latter.” Section 439, Revised Statutes, concerning proceedings by attachment in the circuit court, provides, in substance : that on the trial of the issues under a plea in abatement, if the same be found for the plaintiff, judg [365] meat shall be rendered for the plaintiff against defendant sustaining said attachment, and for the costs of the attachment proceedings, and the defendant may file his bill of exceptions, and go to trial on the merits, without waiving his rights to have the action of the court, on the plea in abatement, reviewed. It then provides, that if the issue on the plea in abatement be found against the plaintiff, and he appeals therefrom, the defendant may 'not be required to answer to the merits until the matter is at an end respecting the trial of the plea in abatement. It then concludes with the following provision: “And if the party, against whom judgment shall be rendered, fails to appeal during the timé fixed by law for appeals in other cases, he shall be deemed to have waived all right to have such judgment reviewed.” In an attachment there are two distinct issues. The first arises on the' plea in abatement, which puts in issue, alone, the truth of the facts alleged in the affidavit as the basis of attachment. On this issue the merits, ordinarily, are not involved. After this issue is disposed of, that, as to the merits comes on for hearing. This may be at a term subsequent to that at which the issues on •the plea in abatement are determined. There are necessarily two judgments. If the issue on the plea in abatement be found for the plaintiff, as in this case, in the justice’s court, he is entitled to have judgment that the attachment be sustained, and for the recovery of his 'costs against the defendant in that behalf had, etc. It may be conceded that the defendant could not appeal directly from this judgment before the final judgment on the merits, as the statute seems to contemplate that he may then take issue on the merits without waiving his right of review on the judgment against him on the plea in abatement; yet, if he would have that adverse judgment reviewed, the burden of appealing therefrom should certainly rest upon him, as we do not see how the plaintiff can be held to have appealed from a judgment in his favor, on the issues arising in the plea in [366] abatement. For he complains of, and appeals from, the judgment against him on the merits, and nothing else. Be this as it may, the conclusion reached by us on the merits makes the result the same to the parties in this cause. For, if it should be conceded that the appeal taken by the plaintiff, also brought up for retrial the issues on the plea in abatement, as there was no real ■controversy as to the fact of the rental claimed by the plaintiff being justly owing to him, and past due, this fact gave him a right of attachment, and the trial court ■should have found the issue for the plaintiff. Chamberlain v. Heard, 22 Mo. App. 416. II. The controlling question, arising on the merits, is, are the defendants assignees, or, under-tenants ? At •common law, if they were assignees of Martin they are liable, personally, on all the covenants of their assignor. If only under-tenants, they would not, at common Jaw, be personally liable for the money rental promised by Martin. Wood’s L. & T., sects. 93, 330; Taylor L. & T. (7 Ed.) sects. 16-109. An assignment is where the lessee transfers the whole interest of his lease to another, without retaining .any reversionary interest. An under-letting is where the lessee sub-lets the premises, retaining a reversion in himself. Authorities supra; Woodhull et al. v. Rosenthal et al., 61 N. Y. 383. It is a sub-lease where, as in this case, the contract provides for a surrender at the end of the term, to the first lessee, and especially so where the letting by the first lessee is only of a part of the farm leased. Woodhull et al. v. Rosenthal et al., supra; Fulton et al. v. Stewart, 2 Ohio, 216. It must, therefore, be held that at common law this was an under-letting, and not an assignment, and the defendant would not be liable, on a money demand, for the rent to plaintiff. ; III. The remaining question, therefore, is, whether [367] or not this .rule of the common law has been changed by the following section of the statute (Rev. Stat., sect. 3095): “ Rent may be recovered from the lessee or person owing it, or his assignee or under-tenant, or the representative of either, by the same remedies given in the preceding sections ; but no assignee or under-tenant shall be liable for rent which became due before his interest began.” We are of opinion that the only reasonable construction to be placed upon this section is, that it was the design and purpose of the legislature to place the under-tenant on the same footing with the assignee. It is the rent due the first landlord that may be recovered from the under-tenant, and it is by the same remedies given by the statute against his immediate tenant. This construction seems to be inevitable from the concluding language of the section, “but no assignee-or under-tenant shall be liable for rent which became due before his interest began.” Why relieve him of liability for rent accruing prior to his entering as under-tenant, if it were not in the mind of the framer of the section that such person was thereby rendered personally liable for such rents as accrued after he entered into the possession. This conclusion is inevitable. The object and purpose of the legislature were to wipe out the common law distinction between an assignee and under-tenant, in this respect, and to give the landlord the same remedies against them, by enforcing a lien against the crops grown on the demised premises, or by attachment, where he might run one against his tenant. IY. It being undisputed that the rent from Martin to plaintiff was past due and unpaid, the plaintiff was entitled to have and maintain his attachment, and to recover judgment on the merits, if not otherwise obstructed by some legal impediment. It is suggested by respondents’ counsel that the plaintiff ought not to recover, because he was present when the lease from Martin' to these defendants was executed, and the de [368] fendants refused to have inserted a clause in their contract with Martin, similar to that between plaintiff and Martin, providing for a money rental'for the corn crop, and that plaintiff, standing by, and, in effect, consenting thereto, is now estopped from insisting on the statutory liability of defendants. But the answer to this is, that this proceeding originated in a justice’s.court, and such courts have no jurisdiction over the question of an estoppel in pais. That is a defence peculiar to equity jurisprudence, which justices of the peace do not exercise. Wills v. Stephens, 24 Mo. App. 494. It follows that the judgment of the circuit court must be .reversed, and .the cause remanded for further proceedings, in conformity with this opinion. It is so. ordered. All concur.