Mitchell v. Young , 80 Ark. 441 ( 1906 )

Hill, C. J.

Appellee Young, as lessee of the Metropolitan Hotel in the city of Little Rock, brought an action of unlawful detainer against Mitchell, the appellant, to' obtain possession of a room in the lobby of said hotel occupied by Mitchell as a barber shop. On the trial before a jury the court directed a verdict for the plaintiff in said action, and Mitchell appealed.

The evidence develops these facts: The Metropolitan Hotel was owned by one Young, and at his death passed to his heirs and was probably controlled by the administrator. Torrey had a lease upon -it, and during his lease he sub-leased the barber shop to Mitchell. This was in writing, and stipulated that, should Torrey get a renewal of his lease, it would carry a like renewal of Mitchell’s lease of the barber shop. Torrey did obtain a renewal, and recognized Mitchell’s renewed lease. Mitchell held for about two years under the renewed lease, and Torjey died in possession of the leased premises. Thereafter Torrey’s administrator and the Young heirs and the administrator of Young consented to an order of probate court cancelling the Torrey lease, which still had some time to run. After this agreed cancellation of the Torrey lease the hotel was leased to Roger Young, the appellee, who had knowledge of Mitchell’s occupancy of the barber shop and of his lease thereof under Torrey. Mitchell was not a party to the surrender to the Torrey lease, and was not notified of the proceeding in the probate court, and has not consented thereto.

Where there is no covenant against subletting, a lessee has a right to sublease all or any part of the leased premises; and when he does so, he can not, by a surrender of the leased premises. to the lessor, defeat the rights of his undertenant. The interests of the undertenant will continue as if there had been no surrender; the owner of the property becoming the direct landlord of the undertenant. The lessee could only surrender what belonged to him and, having sublet part of the property, it is not his to surrender. The owner takes back the premises subject to the existing rights growing out of the original lease. These principles are found stated and applied in the following authorities: Krider v. Ramsey, 79 N. C. 354; Bailey v. Richardson, 66 Cal. 416; Adams v. Goddard, 48 Me. 212; Eten v. Luyster, 60 N. Y. 252; Jones on Landlord and Tenant, § 429.

It is urged that the bill of exceptions does not affirmatively show that it contains all of the evidence, but it does show inferentially and by natural implication from the language used that it contains all the evidence, and this is sufficient. Leggett v. Grimmett, 36 Ark. 496; Overman v State, 49 Ark. 364.

It is said appellant did not except to overruling the motion for new trial, but that objection is removed by correction of the record by nunc pro tunc entry. It is sufficient if the record shows the exception. Carpenter v. Dressler, 76 Ark. 400.

Reversed and remanded.