Love v. Cahn , 93 Ark. 215 ( 1909 )

Frauenthal, J.,

(after stating the facts.) 1. Before considering the questions involving the rights upon the one hand and the liabilities of the parties on the other hand, in this case, we will determine the objection urged by the appellants to the pleadings. It is contended that the claim or right of action growing out of the liabilities accruing upon the alleged breach of the supersedeas bond is not assignable, and that therefore the said Kaufman, who was the obligee in said bond, was a proper party to this suit. The appellants in the court below did not file a demurrer on the ground that there was a defect of parties, but only filed a general demurrer. A general demurrer does not reach the defect of the want of proper parties. Eagle v. Beard, 33 Ark. 497; Chrisman v. Jones, 34 Ark. 73; Less v. English, 75 Ark. 288. But, furthermore, in this case Kaufman was actually made a party to the suit. In the complaint he was specifically named as a party defendant, and in their cross-complaint the appellants asked that process issue for him and asked for affirmative relief against him. While no process was issued for him, he did file an answer, and thus did enter his appearance in the case, and thereby was made a party thereto as effectively as if he had been duly served with process of summons. And, even though it should be considered that the claim sued on was not assignable so as to conclude the rights of Kaufman, and on that account he was a proper party, this defect was remedied by thus making him a party after the action was begun. And the court did not abuse its discretion by permitting him to enter his appearance and file his pleading in the case. Boles v. Jessup, 57 Ark. 469. If 'he was a necessary party, he thus actually became a party to the suit; and any claim or right that he may have in the cause of action is concluded by the decree of the court, against which, therefore, the appellants are thus fully protected.

But it is urged further by appellants that Kaufman had at one time instituted suit upon this claim, and thereafter did suffer a nonsuit; that his answer in this case was not filed, and his entry of appearance in the cause was not made, until more than one year after said order of nonsuit; that any right of action on the claim was therefore barred as to him; and that on this account he could not be made a party, and the cause of action must fail. But the statute (Kirby’s Digest, § 5083) which tolls the statute of limitation for one year where the plaintiff suffers a nonsuit does not narrow the period of limitation in which an action may be brought upon a claim which is not otherwise barred by the general statute of limitation applicable to such claim. This provision of the statute only applies to those causes of action which, under the general statute of limitation applicable to such cause of action, would otherwise be barred before the running of one year from the time of taking such nonsuit. The statute, instead of shortening the period of limitation, really extends the period provided by the genral statute of limitation applicable to the cause of action.

It follows, therefore, that any right or interest that Kaufman may have had in the claim sued on was not -barred at tire time of the filing of his answer in this case. It follows also from this that the further contention -made by appellants that the claim sued' on was not assigned or transferred by Kaufman to the appellee, Cahn, cannot be sustained.' For Kaufman is a party to this suit, and is concluded by the decree. If the appellants owe the claim sued on, they cannot be injuriously affected by the decree which finds that Cahn, and not Kaufman, is the true owner thereof.

But we are further of the opinion that Kaufman did transfer and assign this claim to appellee prior to -the institution of this suit, and that he had not disposed of it prior to said assignment. Kaufman had been conducting a mercantile business at Coriola, Arkansas, and the claim herein sued on grew out of that business. He transferred to appellee by written instrument all assets and claims of that business and all “rights of action” in the State of Arkansas owned by him, and also conveyed to appellee the lands from which these rents issued. In his answer he stated, and in his deposition he testified, that he had transferred and assigned the claim herein sued on to appellee. By this transfer Cahn became the equitable assignee of this claim. By section 5999 of Kirby’s Digest it is provided that actions shall be brought in the name of the real party in interest; and under that statute we are of the opinion that appellee had a right to sue in his own name for the enforcement of this claim. Hartman v. Franks, 36 Ark. 501; Caldwell v. Meshew, 44 Ark. 564; Lanigan v. North, 69 Ark. 62; Maloney v. State, 91 Ark. 485; 4 Cyc. 97.

2. It is contended by the appellants that Love was in effect a tenant of Kaufman for all the years he had possession of the land after 1901, and that Kaufman was not-therefore kept out of the rents thereof for those years. They base this contention on -that portion of the decree which provided that Love should retain- possession of the land until January x, 1902, and should remain in possession of the land during 1901 as tenant of Kaufman; and that his possession of -the land after 1901 was that of a tenant of Kaufman holding over. But this provision of the order of the court was only made for properly securing to Love the possession of the land and postponing the possession of Kaufman. Instead of making Love give a bond for the payment of the use and occupation of the land, or of appointing a receiver of the land, the court permitted Love to retain its possession, and provided a character of lien for the security of the payment for its use and occupation. There was no relation of landlord and tenant created by this order between these parties. They did not make any agreement to that effect. To create the relation of landlord and tenant, there must be a valid contract between the parties. There must be both a privity of estate and contract before that "elation can arise, so as to justify the recovery of rents, on the one hand, or the presumption, on the other hand, that, the possession is subordinate to and the actual possession of the party having the legal title. 24 Cyc. 877; Tucker v. Byers, 57 Ark. 215.

This order of court was not a contract, either express or implied, between the parties, and it did not ci-eate the relation of landlord and tenant between them, so that it can be said that the posession of Love was the possession of Kaufman subsequent to January 1, 1902. The chancery court found that Love refused to surrender the possession of the land after that date and held in opposition to the rights and -claim of Kaufman; and we think that there is sufficient evidence to sustain that finding. We are of opinion therefore that Kaufman was not in possession of said land through Love as his tenant, but was kept out of the possession and rents of the land.

3. And we are of the opinion that Kaufman was kept out of said rents by reason of said appeal. By the execution of said supersedeas bond the appellants contracted “to pay all rents or damages to the property during the pendency of the appeal, of which the appellee is kept out of possession by the appeal.”

The liability incurred by .the execution of the bond is fixed by the legal import of its terms, and thes.e should be construed according to the ordinary and reasonable meaning of the language employed. 1 Enc. Pl. & Pr. 1015; 5 Cyc. 752.

The bond should not be held to cover a liability occurring before its execution unless its terms make provision to that effect. But in this case the bond expressly provides for the payment of “all rents of which the appellee is kept out of by reason of the appeal.” By virtue of the appeal having been taken to the Supreme Court the case was wholly and absolutely removed to that court. Upon the execution of the supersedeas bond and the issuance of the supersedeas all the proceedings in the chancery court were wholly suspended and stayed. Elliott on Appellate Procedure, § 541; 2 Cyc. 908; Harrison v. Trader, 29 Ark. 85; Miller v. Nuckolls, 76 Ark. 485.

While the supersedeas does not annul 'or vacate the judgment or decree appealed from, it does prevent the further taking of any step thereunder, and leaves the matters in the condition in which they were when the supersedeas took effect and until the questions involved in the appeal are finally disposed of by the appellate court. 20 Cyc. 1240.

The supersedeas stayed the enforcement of the right of Kaufman to the possession of the land, and it also stayed the enforcement of the recovery for its use and occupation. Under the evidence and finding of the chancellor Love had the possession of the land for the year of 1902, and kept Kaufman out of rents thereof for that year. Kaufman could thereafter have instituted suit or taken legal steps to have recovered for the use or rent of the land for that year. But on May 4, 1903, the supersedeas bond was executed and the supersedeas issued, and Kaufman was thereby stayed from the enforcement of a recovery for the use or rent for that year. It will not do to say that he could have attempted to collect the amount for the use or rent of the land before' that date; he had a right also to do this after that date, and he was kept from doing this after that date by.reasonoof the appeal and supersedeas.

Giving to the terms of the bond their full and reasonable effect, it covered the rent of the land for 1902. Wilson v. King, 59 Ark. 32; United States Fidelity & Guaranty Co. v. Fultz, 76 Ark. 410; 2 Cyc. 909.

The liability under the bond continued only until the cause was determined and disposed of by the appellate court. 20 Enc. P. & P. 1245; 2 Cyc. 909; Elliott on Appellate Procedure, § 394-

It follows therefore that the appellants were also liable under said bond for the rents of the land for the year of 1903 and until March 7, 1904, when the said appeal was finally disposed of by the Supreme Court. The chancellor found that no damage accrued by reason of -the failure to rent the land from January 1, 1904, to March, 1904, when said appeal was disposed of. The property consists of farm land that is rented, not by the month, but by the year, and probably under the evidence it could have been as readily rented in March for said year as in January. At least, there is no evidence showing any damage on this account, and we cannot say that the finding of the chancellor in this respect is erroneous. There is no evidence showing that any waste was committed on the land during the pend-ency of the appeal. Any alleged waste may under fhe testimony have been done after March, 1904, and after fhe liability under the bond had ceased. This was the finding of the chancellor; and in this conclusion we find no error.

After a full examination of the pleadings and testimony in this case, we do not find that the chancellor has made any _ error either in the findings of fact made by him or in the conclusions of law at which he arrived.

The decree is accordingly affirmed.