Johnson v. Thompson , 185 Ala. 666 ( 1914 )

SOMERVILLE, J.

The two questions presented for review are comprehended in the special charges requested by and refused to defendant.

Conceding, without deciding, that a landlord has no lien upon the crops of a subtenant for advances made directly to him, and that plaintiff could not recover in this case unless he were the landlord of Clarence Hendrix during the time the advances were made to him, defendant was nevertheless not entitled to an instruction denying plaintiff’s right to recover unless he had rented the land to Clarence Hendrix, or if he had rented it to Enoch Hendrix, for the year 1911. The undisputed evidence shows either that plaintiff rented to Clarence directly, or else that, having rented to Enoch, the latter in turn rented the entire tract for the whole term to Clarence.

“There is a well-defined distinction between the assignment of a term for years and a sublease or under-letting. * * * Generally speaking, if the lessee parts with his entire interest in the term, it constitutes an assignment and not a subletting, although the instrument of transfer is in form a sublease; but if the lessee reserves to himself a reversionary interest in the term, it constitutes a sublease, Avhatever the form of the instrument of transfer.” — 24 Cyc. 974, c, and cases cited; note to Washmgton Nat. Gas. Co. v. Johnson, 10 Am. St. Rep. 557, citing and discussing numerous authorities; Sexton v. Chicago Storage Co., 129 Ill. 318, 21 N. E. 920, 16 Am. St. Rep. 274.

“The assignment of a lease creates the relation of landlord and tenant between the assignee and the lessor, and the rights and liabilities of those parties are such as are incident to that relation.” — 24 Cyc. 979, 4, a.

These principles are well settled, and from them it results that plaintiff was the landlord of Clarence Hendrix, whichever way the latter acquired the leasehold estate, and it follows, of course, that plaintiff acquired as to him and his crops all the rights given to landlords by section 4734 of the Code.

We entertain no doubt but that the money advanced by plaintiff for taking up the mortgage on his tenant’s mule may come Avithin the terms of the statute creating a lien for advances. — Donaldson v. Wilkerson, 170 Ala. 507, 54 South. 234. It can make no' material difference that the landlord took the precaution of taking a transfer of the mortgage to himself, so long as it does nott appear that he ever elected to satisfy his claim out of the mortgage security. Certainly, the retention of that security was not an implied waiver of his landlord’s lien.

There being no error apparent on the record, the judgment will be affirmed.

Affirmed.

Anderson, C. J., and McClellan and Sayre, JJ., concur.