Gibson v. Mullican ( 1883 )

Walker, P. J. Com. App.

The sole question presented by this appeal is, whether there exists such privity of contract or of estate as entitles the landlord to enforce by distress warrant his remedy for rent due from his tenant against the property of the sub-tenant on the premises, and which property consists of produce raised by the sub-tenant on the portion of the rented premises which has been under-let to him by the tenant.

There is no such privity between the landlord and the sub-tenant, arising merely from that relation, as will subject the sub-tenant to liability for the debt of the tenant from whom he has leased, to the landlord, there being neither privity of contract nor estate between them. See Taylor’s Landlord and Tenant, sec. 16 Harvey v. McGrew, 44 Tex., 415.

“ When a lease contains no covenant or stipulation against the sub-letting of the premises, a tenant in possession under it may sublet the entire premises, or a part thereof, to another, to be used for any purpose not inconsistent with the demise to him, or may assign the lease or his interest in the premises.” See Wood on Landlord and Tenant, p. 113, sec. 85. “ But the sub-tenant is the tenant of his lessor, and not of the original landlord.” Id., p. 113.

The defendant’s answer alleges that plaintiff entered upon the rented premises with a full knowledge of all the terms of the contract between the deceased and Bunnels (the tenant who rented from the deceased the whole of the premises), “ and that he took possession of that part of the premises occupied by him under an agreement and with the 'understanding that all the corn and cotton raised on said farm during the year should be held responsible for the rents so due by the said Bunnels to his landlord, Self. That it was in consequence of this understanding and with the agreément on the part of plaintiff that the crops so raised on said farm should be held liable for the rents due by Runnels to deceased, that he (plaintiff) was permitted to enter upon, occupy and cultivate a part of said farm. That had it not been for the agreement aforesaid he would not have been permitted to enter upon, use and enjoy said farm as aforesaid.”

[Opinion approved January 29, 1883.]

These allegations do not assert the existence of any contract, agreement or understanding had by the plaintiff with the landlord, Self; they do not directly state with whom the agreements and understandings specified in the answer above quoted were had. The amended answer alleges, however, that the plaintiff and Hendricks sub-leased portions of the farm from the defendant Self, from Runnels, who had leased the entire farm for the year 1813. The contract set up by the plaintiff was therefore one which he made, not with Self, but with the tenant; and the plaintiff’s pleadings being construed most strongly against himself, it will be intended that the agreements and understandings referred to in his trial amendment related to what transpired with Runnels in making the contract of sub-letting of a portion of the farm to the plaintiff. Consequently no privity of contract or estate can be assumed to have been shown between plaintiff and Self, by reason of any facts alleged in the several answers filed in the cause.

The rights of the parties accrued under the rent laws in force in 1813. See Pasch. Dig., arts. 5021, 5028. Since that period it has been enacted by the legislature that, a if lands or tenements, aró rented by the landlord to any person or persons, such person or persons renting said lands or tenements shall not rent or lease said lands or tenements during the term of said lease to any other person, without first obtaining the consent of the landlord, his agent or . attorney.”

This case was not affected, however, by any similar legislation qualifying the tenant’s right to lease the rented premises, or portions of it, to other persons.

The judgment ought to be affirmed.

Affirmed,