Welch v. Ashby

BLAND, P. J. The proceeding is under sections 4131 and 4133, Revised Statutes 1899, which superseded the common-law remedy by distress for rent. To entitle the landlord to recover in this character of action, it is indispensable that he make demand and also state in his affidavit for his landlord’s warrant the exact amount of rent, in order to give the tenant the opportunity to avoid the suit by payment of the rent demanded. Cook v. Decker, 63 Mo. 328; Vaughn v. Locke, 27 Mo. 290; Moers v. Martin, 23 Mo. App. 654. If the sum demanded is part for rent and part for something else, though the payment for both be provided for in the lease, of the premises in a lumping sum, the action can not be maintained. An illustration of this is found in the case of Riley v. Renick Milling Co., 44 Mo. App. 519, in which it was held, where the plaintiff had rented his farm to one Einey for one year for $450, plaintiff agreeing to board Einey and one hand for six months, that there was an agreement to pay a lumping sum for the rent of the farm and for the board, and that there was [405] no landlord’s lien on the crop for the rent, for the reason the rent was not severable from the board. ■ The principle is also aptly illustrated by the case of Stewart v. Gregg, 42 South Carolina 392, wherein it was ruled that where the rent reserved was fifty-four hundred pounds of lint cotton for the land and two mules, distress for the rent was not authorized — for the reason that an element of uncertainty arose as to the rent of the land— the rent reserved being a lump number of pounds of cotton for the rent of the land and the use of the mules. Cranson v. Rodgers, 83 Ga. 750, is also in point. Eodgers agreed for fifteen thousand pounds of middling lint cotton, packed in bales, to rent his plantation, the consideration being that Morris would furnish Eodgers a certain plantation, six mules, certain implements, a steam engine, a cotton gin, a packing screw, four thousand pounds of fodder, one thousand pounds of peas, sixty-five bushels of corn, one thousand bushels of cotton seed, six tons of commercial fertilizer and twenty-five hundred pounds of side meat. Morris sued out a distress warrant for the rent and was nonsuited, for the reason it could not be ascertained from the contract how much was due for rent ox how much for the corn, fodder, etc. In the discussion of the case, however, the court said that “it is well established that the use of personalty which could be hired separately and apart from the land, may, if upon the land and used with it, be included in a rent contract and the payment to be made for the whole treated as rent,” citing Toler v. Seabrook, 39 Ga. 14; Lathrop v. Clewis, 63 Ga. 282; Tabor on L. & T., secs. 17, 18; McAdams on L. & T., sec. 61; Wood on L. & T., sec. 203. In Newman v. Anderson, 5 B. & P. 224, Lord Mansfield observed that, “it must occur constantly that the value of demised premises is increased by the goods.upon the premises and yet the rent reserved still continues to issue out of the house and land and not out of the goods.” [406] In Fay, Excr., v. Hollovan, 35 Barb. 295, Eay’s testator had leased defendant á tannery and the tools thereto belonging, two dwelling houses and gardens and the land around the tannery; it was ruled that the tools should be deemed a part of the tannery and that the entire rent issued out of the land. In Vettus’ appeal, 99 Pa. St. 55, the landlord had leased a planing mill with the machinery and fixtures therein for, a rental of twenty-five hundred dollars per annum; it was ruled that the rent issued out of the land, the court observing in the course of the opinion, that “rent may issue, not only from lands and tenements corporeal, but also from personal property necessary for the proper enjoyment of the premises, is settled by the case of Mickle v. Miles, 7 Cossey, 20, and indeed a proposition so obvious ought never to have been doubted.” This observation is supported by Sutliff v. Atwood, 15 Ohio St. 186, where a dairy farm and the cows thereon, the latter to be increased to forty, were leased for five hundred dollars per annum; it was held that the rent issued out of the land and not out of the land and cows. Mickle v. Miles, supra, is a parallel case, being for rent of a dairy farm and stock. Toler et al. v. Seabrook, 39 Ga. 14, is a similar case; there the lease was of real estate, the tenant to have the use of the mules, tools, gin and other personal property actually on the place, forming a part of the machinery for carrying on the farm, for a stipulated sum as rent; it was held that a distress warrant might be issued for the whole sum agreed upon. In Stein v. Stely, 32 S. W. 782 (Texas Civil Court of Appeals), the tenant had rented a furnished hotel for a stipulated rental; it was held that the furniture was incidental to the lease of the building, and that the rent reserved issued out of the land. Mr. Wood in Volume 1 (2 Ed.), section 47, of his work on Landlords and Tenants, says: “Contracts of letting and hiring furnished houses or apartments are of a mixed [407] nature, partaking of the nature of a demise of lands and partly of the letting and hiring of personal chattels, but in law the rent is deemed to issue out of the realty and not in part from the furniture.” “If lands and personal chattels, as lands and sheep or farming implements, or a house and furniture, etc., are leased, the rent issues out of the land.” Farwell v. Dickinson, 6 B. & C. 251. “Rent,” says the 12 Eng. and Am. Ency. of Law, p. 740, “is not confined solely to the compensation for the use of the land, for chattels are often demised with the land and form no inconsiderable portion of the consideration for which rent is paid.” But that which in law is not rent, can not be made so by the parties by any terms they may use or by stipulations and agreements they may incorporate in the lease. Miners Bank v. Heilner, 41 Pa. St. 452. Turning to the lease excluded from the evidence, we find that the lessor leased his farm; that he agreed to furnish $1,650 to buy forty cows and one bull, to be his property and to be returned to him at the expiration of the lease, the lessee to have the increase; that he also agreed to let the lessee have $600 without interest during the life of the lease, with which the lessee was to buy horses and implements, and that he gave the lessee an option to buy the farm at the end of his term for eleven thousand dollars. The option and the loan of the six hundred dollars, without interest, doubtless furnished some inducement to the lessee to execute the lease, but neither the one nor the other is made a part of the consideration for its execution. The consideration, and the sole consideration, according to the terms of the* lease itself, upon which the lessee agreed to pay the rent, is found in the following clause of the lease, to-wit: “and the said party of the second part (lessee), in consideration of the leasing of the premises and personal prop [408] erty aforesaid, does covenant and agree to pay the party of the first part (the lessor) as rent, the sum of $1,250 per annum.” The personal property referred to in this clause was the forty cows and bull, which the lessee was to buy with the lessor’s money. Because these cattle were not on the farm at the very time of the execution of the lease it is contended by respondent that they do not come within the rule laid down by the cases above cited. It seems to us that this contention is not sound. The whole scope, of the lease shows that the parties had in contemplation the use of the farm by the tenant as a stock farm, in part if not wholly so, and that his profits from the demised premises would be largely derived from the offspring of the cows, and we do not think it at all material that the cows were not then on the farm; they were to be put on the farm and the lessee was furnished the $1,650 with which to purchase them; an arrangement more beneficial to him than it would have been had forty cows been on the farm — for he had the privilege of making his own selection and placing them on the farm when he was ready for them. He agreed to buy them and pay rent for them; they were an incident to the farm, made a necessary one under the very terms of the lease to make the farm profitable to the tenant, and we think by the terms of his contract, he and his subtenants are estopped to segregate the rent of the cows from the rent of the land or to apportion the sum total of the rent between the farm and the cows. In this view of the lease, according to all the authorities, the rent reserved in the lease issued out of the land and not out of the cows, nor out of the land and the cows. The learned circuit judge had a misconception of the tenor and effect of the lease and erred in excluding it from the evidence. Wherefore, the judgment is reversed and the cause remanded. All concur.