Dodson v. Moore , 272 S.W. 263 ( 1925 )

I cannot agree with my associates in the disposition of the appeal in this case. Dodson, the owner of a farm, leased it for one year to G. A. Moore for farming operations only. Moore went into possession of the farm and planted 90 acres in cotton and 25 acres in maize. Moore headed the maize, leaving the stalks, and on or about November 20, 1923, sold his interest in the maize patch to C. E. Elliott for pasture purposes. Elliott built a wire fence, segregating the maize patch from the cotton crop, and proceeded to turn a number of horses onto the maize patch. As soon as Dodson learned of this action on the part of Elliott, he went to see Elliott about his horses being pastured on the maize. Dodson did not go out to the farm again until December 4th, when he then learned that Moore had made another trade with Elliott, in which he sold Elliott the cotton crop. The record discloses that the sale of the maize and the sale of the cotton crop were two separate transactions; that the cotton was sold by Moore to Elliott some time between the 29th of November and the 4th of December.

In his conversation with Elliott on the 29th of November, the first time he knew of the maize patch having been bought by Elliott, Dodson did not declare the lease forfeited. Here is what Dodson testifies was the statement he made to Elliott at the time:

"In my conversation with Mr. Elliott, I asked Mr. Elliott if he had made any trade with Mr. Moore. I told him that I had heard that he had, and he said he had, and I asked what trade he had made, and he said he had leased this maize patch out there for a stock pasture for the remainder of the year. I told him that I objected to it, and told him that I didn't want that pastured at all."

There is not even a hint of forefeiture of the lease in this. Elliott, after that, bought the cotton crop which was being gathered at the time. As stated, there is not any attempt of the forfeiture of the lease in this conversation, and no forfeiture was had until this suit was filed on the 4th day of December; Dodson having discovered that Moore, his tenant, was moving off the place.

There were two distinct transactions of sale by Moore to Elliott, and both occurred before any forfeiture was declared. So far as the sublease which covered the maize crop is concerned, the trial court entered the correct judgment, for Moore had no authority to sublease it. Such subleasing was in violation of article 5489, Vernon's Sayles' C. Statutes, which prohibits subleasing without the consent of the landlord. Brown v. Pope, 27 Tex. Civ. App. 235, 65 S.W. 43. The landlord, Dodson, by reason of the sale by Moore to Elliott of the maize patch for pasture purposes, and which sale carried with it the control of the premises segregated, was authorized to declare the lease forfeited, and was authorized to take possession of the premises. Markowitz v. Greenwall Theatrical Co. (Tex.Civ.App.) 75 S.W. 76; Scott v. Slaughter,35 Tex. Civ. App. 524; 80 S.W. 643; Hudgins v. Bowes (Tex.Civ.App.)110 S.W. 178, 179; Stubblefield v. Jones (Tex.Civ.App.) 230 S.W. 720, 721 (writ denied); Waggoner v. Snody, 36 Tex. Civ. App. 514, 82 S.W. 355.

The law does not favor forfeitures. In this case the landlord had the right to waive the forfeiture of the lease, hence, this being his right, and he declaring no forfeiture, no automatic forfeiture or implied forfeiture could result from the sale of the maize patch to Elliott. I do not think a forfeiture ought to be, or can be, implied from any conversation or conduct of Dodson until December 4th, when he filed this suit, consequently, Elliott having made his purchase of the cotton while Moore's lease was in effect, Elliott took the title to Moore's interest in the cotton crop, with the right of ingress and egress to gather and market same free from claim by Dodson, except for his cotton rent, which Elliott attempted to pay him.

The tenant, having title to three-fourths of the cotton crop, had the right to sell it. 16 R.C.L. § 332; Id., § 419; Davis v. Goldberg Smith, 75 Tex. 49, 12 S.W. 952. Such sale carries with it the right of ingress and egress. Davis v. Goldberg Smith, supra.

I cannot draw any distinction which would allow the creditor of the tenant who had purchased the crops at execution sale to enter and gather it, and yet to forbid the purchaser from the tenant doing the same thing. In both cases the sanctity of the landlord's possession will have been violated by the right of ingress and egress for such purposes.

The crop did not pass to the purchaser of the land, Burnison, by the contract of sale, because there was no delivery of possession of the land until long after the gathering of the crop. The tenant Moore having the right to sell his interest in the crop, and having sold such interest to Elliott before any forfeiture of the lease by Dodson, this was a constructive severance, and the right to the crop in no wise passed to the purchaser of the land, but the title vested in Elliott. Willis v. Moore, 59 Tex. 628, 46 Am.Rep. 284; Lombardi v. Shero,14 Tex. Civ. App. 594, 37 S.W. 613, 971; Sanger Bros. v. Hunsucker (Tex.Civ.App.) 212 S.W. 515; Silberberg v. Trilling, 82 Tex. 523, 526,18 S.W. 591.

In the oral argument before this court, appellant's counsel practically conceded that appellant is not entitled to recover for damages done the land, if any, because at the time the damage to the freehold occurred a contract of sale had been signed by which appellant had contracted to sell the land to H. L. Burnison, possession to be delivered on the 1st day of January following, and on the last-named date appellant had received the contract price from Burnison without any diminution; hence, if there was any damage inflicted on the land by reason of the turning of the horses on the maize patch, the purchaser, and not Dodson, would have been entitled to recover for such damages.

The trial court so found, and I think his conclusion was correct.

For all of which reasons I am of the opinion that the judgment of the trial court should be affirmed.