Roth & Co. v. Williams

45 Ark. 447

• Court: Supreme Court of Arkansas
• Decided: November 15, 1885
• Status: Published

Opinion

Cockrill, C. J.

On the trial the appellee was allowed to introduce testimony tending to prove that the rent reserved for the land was much less than the amount recited in the contracts of lease between the appellants and their tenants. The contention was that the appellants had added store accounts, due them for a previous year by their tenants, to the amount actually reserved- as rents, and called the whole amount rent. The appellee claimed under a mortgage, executed before the written contracts of lease, and as his title was thus anterior to the date of the reciting deeds, he was not bound,by their terms. For this reason, if no other, the court was right in permitting him to show the true consideration of the leases. Talbot v. Wilkins, 31 Ark., 411; Carver v. Jackson, 4 Pet., U. S., 4, 82; 1 Greenl. Ev., Sec. 21, n. 1.

1. Landlord's Lien: When contract embraces other

It was not competent for the landlord and tenant to bind a prior mortgagee of the crop, by an agreement between themselves to include in their rent contracts an amount due the landlord on another and different account, merely by designating the whole amount “rent.” Varner v. Rice, 39 Ark., 344. What was actually due as rent took precedence over the mortgage by virtue of the statutory lien, and the mortgagee could not recover possession of the crop from the landlord without paying him what was due him on this account. Buck v. Lee, 36 Ark., 525.

2. Replevin by mortgagee.

Before suit the appellee tendered the amount he believed ..to be due on account of the lien, but the appellants declined it, saying they would accept nothing less than the amounts recited in their leases. Pending the trial the.appellee paid the appellants, in the presence of the jury, a sum which they by their verdict have found to be all that was due for rent and gin charges. The appellants cannot claim precedence over the mortgage for more, and the judgment must be affirmed.