Harbottle v. Central Coal & Coke Co., 134 Ark. 254

134 Ark. 254 | Ark. | 1918

"WOOD, J.,

(after stating the facts). (1) The appellant is not in an attitude to object to the jurisdiction of the court even if the complaint had failed to state a cause of action, because the appellant did not call for a ruling of the court on his demurrer, but, on the contrary, waived all objections to the jurisdiction by filing a cross-bill asking for affirmative relief and upon the issues thus joined proceeded to final adjudication. See Kiernan v. Blackwell, 27 Ark. 235; Greer v. Vaughan, 96 Ark. 524; Pollack v. Steinke, 100 Ark. 28; Pratt v. Frazer, 95 Ark. 405; Plunkett v. State Natl. Bank, 90 Ark. 86.

(2) While the allegations of the appellees’ complaint as to ownership are sufficiently denied in the appellant’s answer to raise that issue, yet the undisputed evidence in the record shows that the appellees James and Paxton were the owners and had contracted to lease the lands in controversy to the appellee Central Coal & Coke Company, and that the latter was entitled to the possession thereof, unless the appellant’s contract with the Darnall Company gave him some interest or estate in the land which would constitute him a junior encumbrancer with the right to redeem.

(3) Appellant’s right, if he has any to defend, or to affirmative relief, is predicated entirely upon the written contract which he designates in his brief as a lease. We are unable to discover after a most critical analysis of the language of this instrument that it bears any indicia of a lease.

“An estate for years,” says Mr. Washburn, “is one that is created by a contract technically called a lease whereby one man called a lessor lets to another called the lessee the possession of lands or tenements for a term of time fixed or agreed upon by the parties to the same.” 1 Washburn on Real Property, § 608.

“Lease is a conveyance of lands or tenements to a person for life, or years, or at will, in consideration of a return of rent or recompense. ’ ’ 1 Devlin on Real Estate, § 13.

“A lease is a contract by which one person divests himself, and another takes possession of lands or chattels for a term, whether long or short. ’ ’ Wood, Landlord & Tenant, § 203. See also Cruise Digest, tit. “Lease;” Words and Phrases, “Lease,” page 56 et seq.

While the term “lease” is one of technical import, yet no specific words are necessary to create or describe the relation of lessor and lessee, but words must be used which have the effect to divest the owner or lessor of tie possession and right to the possession, and which invests the lessee with the subject-matter of the lease, for the term contemplated by the contract, whether long or short. True, the words “his lease” occur once in the contract under review, but these words, when taken in connection with the immediate context and with all the other words of the instrument, do not have any effect in fixing its legal character. When the instrument is construed as a whole, it contains all the elements of a license, but none of the characteristics of a lease. “A license is a personal, revocable and nonassignable privilege conferred either by writing or parol to do one or more acts on land without possessing any interest therein.” Words & Phrases, “License,” page 116 et seq.

In Joplin Supply Co. v. West, 149 Mo. App. 78-93, it is said: ‘ ‘ There is a marked difference between a license and a lease. In a lease the right of possession against the world is given to the tenant, while a license creates no interest in the land but is simply an authority or power to use in some specific way.”

Judge Burnett, speaking for the court of the Third Appellate District of California, gives a very accurate definition of license, and a very clear test for determining the difference between a license and a lease as follows: “A license in respect to real estate 'is an authority to do a particular thing upon the land of another without possessing an estate therein. The test to determine whether an agreement for the use of real estate is-a license or a lease is whether the contract gives exclusive possession as against all the world, including the owner, in which case it is a lease, or whether it merely confers a' privilege to occupy under the owner, in which case it is a license.” “This,” he adds, “is a question of law arising out of the construction of the instrument under which a lease or a license may be created.”

In Wheeler et al. v. West et al., 71 Cal. 126, 11 Pac. 871, it is said: “There is a broad distinction between a lease of a mine, under which the lessee enters into possession and takes an estate in the property, and a license to work the same mine. In the latter case the licensee has no permanent interest in the property, or estate in the land itself, but only in the proceeds, and in such proceeds, not as realty but as personal property, and his possession, * * # is the possession of the owner.”

Now, when the instrument under consideration is subjected to the above definitions and test, it will be observed that it does not vest any interest whatever in the freehold for any length of time in the appellant. It does not confer upon appellant the exclusive right to the possession of the lands in controversy; it only gives him the right to enter upon the land at a certain designated place and to remove coal from certain designated places which were shown on a map that was made a part of the contract. The places thus designated were separated by areas which appellant had no license to mine but which he had only’ the right to pass over in order to reach the places that were embraced in his license. There is not one word in the contract to indicate that the appellant was to have an estate or interest in the land or in the coal until he had mined the same. The Darnall Company does not surrender to appellant the exclusive right of possession.

The writing under consideration certainly did not create the relation of landlord and'tenant, and the duties and obligations growing out of it were entirely personal to the parties to the contract. The appellant had no right that he could transfer to another. Since no estate or interest in the land was vested in appellant by the contract, the mortgagee in the foreclosure proceedings was not bound to take notice of his possession and to make him a party. Whatever may have been his rights or remedies as against the Darnall Company, the mortgagor, they were acquired subsequent to the mortgage and the character of these rights was not such as to constitute him in any respect a junior encumbrancer with an equity of redemption.

Counsel for appellant assume that the writing is a lease, and therefore an encumbrance upon the land. They cite and rely upon the cases which hold to the general doctrine that one who has an interest in land and would be a loser by a foreclosure proceeding has a right to redeem.

Having decided that the instrument does not vest appellant with any interest in the land, of course these authorities are not applicable, and we know of no authority for holding that the mere licensee of a mortgagor has any right of redemption.

It follows that the decree of the court is correct, and it is, therefore, affirmed.