Brown v. Adams , 35 Tex. 447 ( 1872 )

Walker, J.

The statute provides, under three different states of fact, for the issuing of a distress warrant to secure rent,—

1. When any rent shall become due.

2. If the tenant be about to remove from the rented premises.

3. If the tenant be about to remove his property from the rented premises.

It was upon the first ground that the plaintiff below brought his suit. He avers in his affidavit, and alleges in his petition, that the rent is due and unpaid, and that the defendant neglects and refuses to pay the rent, in kind, as per contract.

The defendant answers, denying that the rent was due, and also moves the court to quash the warrant and dismiss the suit. Here was an issue of fact, very material to the further progress of the suit, which the court could not ascertain or try without a j ury. The question as presented was, does the plaintiff by his affidavit and petition set forth a good cause of action % If so, the mere denial by the defendant, by his pleadings, does not authorize the court to dismiss the case; there is an issue made up between the parties, an issue of fact, to-wit: Was the debt due at commencement of suit or not %

But, another question is presented for our consideration. Did the district court err in holding that the rent was not due until the last day of the rental year % The plaintiff insists that the rent was payable in kind, at the beginning of the gathering season. If the plaintiff’s averment is correct, and it was very material, it Became necessary to ascertain what period of the year is to be regarded as the gathering season; and for this purpose evidence should have been offered, and the fact found by a jury. We do not hesitate to say, that under a contract for rent, payable in kind, the rent should be delivered as the crops are gathered; and if the tenant refuse so to deliver the crops, retaining them beyond a reasonable time in his own possession, the landlord may bring suit for the value of the crops.

It is not for the tenant to say that a rent in kind is not due until the end of the year, where the rent is to be delivered as the crop is gathered. If the rent were payable in money, and the tenant had the whole year within which to pay it, no suit could be brought for its recovery until the end of the year.

The judgment of the district court is reversed and the cause remanded.

Reversed and remanded.