Houston v. Smythe

Campbell, J.,

delivered the opinion of the court.

The facts testified to by the Messrs. Houston are that Samuel Houston was indebted a considerable sum of money to Mrs. Smythe, which was secured by a deed of trust on land owned by him, and he determined to sell his land in different parcels, severally to his two sons and his son-in-law, and to get Mrs. Smythe to take the notes they would give for the purchase price of the land, in payment of the debt to her.

Mrs. S. was applied to, and signified her willingness to take the notes of the purchasers of the land, to be drawn up by her attorney, Mr. Eads, after the manner of some he had prepared in a transaction she had with Mr. Wallace, and the Messrs. Houston were so informed, and referred by her to Mr. Eads. Thus referred, they applied to Mr. Eads, who promised to prepare the papers, .■and, subsequently did so, and handed them to Mrs. Smythe, who took them to the residence of Mr. Houston to be executed. These papers consisted (so far as involved in this case) of a writing by which Samuel Houston (the owner of the land and debtor of Mrs. S.) agreed to lease a certain quarter section of his land to S. S. Houston, for the year 1887, for the sum of two hundred and fifteen dollars and sixty-two and a half cents, to be paid as rent on •the 1st day of November, 1887, and, if the rent note should be paid when due or soon thereafter, and another note for the sum of two hundred and forty-seven dollars and ninety-seven cents, due 1st November, 1888, should be paid, in like manner, the title of the quarter section was to be conveyed by Samuel Houston to S. S. Houston.

This writing contains the further provision that, if the rent note and the other should not be promptly paid, Samuel Houston or the assignee and holder of the note should have the right to declare ■the lease and sale void and at an end, and no notice to quit should *122 be necessary. This writing was duly executed by Samuel Houston and his wife.

A note for two hundred and fifteen dollars and sixty-two and a¡ half cents, payable 1st November, 1887, for the rent of the land,, and one for two hundred and forty-seven dollars and ninety-seven-cents, payable 1st November, 1888, to Samuel Houston or bearer,, corresponding to the description of them in the writing executed by Samuel Houston and wife, were duly executed by S. S. Houston,, and they were indorsed by Samuel Houston and delivered to Mrs. Smythe, who received them for the debt of Samuel Houston, as-before agreed to be done. The quarter section of land mentioned in the writings was occupied byS. S. Houston, in pursuance of the-arrangement, during 1887, and the rent note mentioned not beingr paid when due, Mrs. Smythe sued out an attachment for rent, and' caused to be seized under it certain agricultural products of the land that year, and S. S. Houston replevied them. Samuel Houston agreed to sell, and S. S. Houston to buy the quarter section of' land at the price of three hundred and seventy-five dollars, to be-paid in equal sums at one and two years. Mrs. Smythe, who waste receive the notes S. S. Houston was to give for the land, desired' the first payment to be a “ rent note,” and in the hands of her attorney the written stipulations of the parties took the form of a lease for the year 1887, and a contract of sale, if the two notes should be paid. S. S. Houston understood the matter and assented to this form of the transaction and subscribed and delivered the-notes, which he knew were to go into the hands of Mrs. Smythe for the debt of Samuel Houston. This debt was long past due, and the deed of trust on the land subject to foreclosure. The arrangement made with S. S. Houston as to part of the land embraced by the deed of trust was by the joint act of mortgagor and mortgagee. The form of the transaction was a contract of lease- and sale by Samuel Houston, mortgagor, and a rent note and a purchase note .by S. S. Houston, payable to Samuel Houston, or bearer. In fact, the mortgagee, Mrs. Smythe, who might have caused the land to be sold under the deed of trust, procured the lease and contract of sale by virtue of which the occupancy of the- *123 land for 1887 was secured to S. S. Houston with the ulterior rights-of a purchaser, and while the notes were made payable to Samuel Houston, they were also to “ bearer,” and were intended beforehand to go into the hands of Mrs. Smythe, in pursuance of the scheme-out of which they arose.

In this state of facts the real lessor of S. S. Houston was Mrs.. Smythe, and she was entitled to an attachment for rent. She is not the mere assignee of a chose in action without privity of estate-in the land, but was mistress of the situation, with a deed of trust on the land whereby she could have it sold, and instead of doing this-entered into an arrangement whereby, acting through Samuel Houston, she let the quarter section of land to S. S. H. for 1887, with ulterior right as purchaser. It matters not that S. S. Houston and his father, Samuel Houston, had agreed on a purchase and sale of the land, and that nothing was said about rent until afterward. All that preceded was merged in the written contract.. That fixed the position and rights of the parties. It was admissible for the parties to create the relation of landlord and tenant, as-they did. The purpose of it is obvious, and after expressly creating this relation for purposes of their own, it is not allowable afterward to recede from it or complain of its legal consequences.

The validity of the attachment for rent and the taking of the goods by virtue of it were indisputable as a legal proposition on the evidence of the plaintiff, S. S. Houston, and no other result-than a verdict for the defendant could be upheld by the court.

The court erred in sustaining the demurrers, but the whole case was fully developed by evidence, and any other result than defeat to the plaintiff in replevin would not be tolerated. In such case it would be wrong to keep alive the controversy which, as under the law, it can have but one end, had better be at once terminated. Therefore, following numerous precedents, we will not inflict upon the party who must utimately lose the cost of further and uselesslitigations by remanding the case because of error in rulings on the pleadings, since it is manifest that no harm was done by these rulings.

*124 But the circuit judge erred in directing the jury to fix' the value of the articles seized- under the attachment at a sum different from that stated in the pleadings of both parties, and for this error the judgment will be reversed and the proper judgment will be entered here.