127 Ark. 466 | Ark. | 1917
(after stating the facts).'
(1) Counsel for the plaintiff claim that the court erred in refusing to give certain instructions asked by them, but the exceptions to these instructions were in gross. Where the exceptions to the court’s several instructions were in gross, they will not be considered on appeal, if any one of them was bad. There are numerous decisions of this court to this effect and we need only cite a few of them. H. D. Williams Cooperage Co. v. Clark, 105 Ark. 157; K. C. So. Ry. Co. v. Morris, 80 Ark. 528; K. C. So. Ry. Co. v. Belknap, 80 Ark. 587. At least one of the instructions was peremptory in its nature and for that reason should not have been given to the jury. It follows we cannot consider the other instructions refused. Moreover the case was submitted to the jury upon proper instructions to which no objections were made or exceptions saved.
It is next insisted that the court erred in, admitting oral evidence to the effect that the lease was assigned to Woods as collateral security for a note signed by him for Weese to obtain money with which to purchase the lease.
(2) It may be stated at the outset that this testimony, if it is competent, would be prejudicial to the rights of the plaintiff. On the ground that there is privity of contract between the lessor and the lessee, the latter is liable to the former upon an express covenant to pay rent even though there has been an assignment «of the term to a third party. Evans v. McClure, 108 Ark. 531. The assignee will generally be liable for all rent accruing while he is in privity of estate with the lessor. Underhill on Landlord and Tenant, vol. 2, p. 1080.
On the other hand if the assignment of the lease was merely intended as a mortgage or as security, it will be presumed that the parties never intended that the assignee should have possession but that the mortgagor should continue in possession and on this presumption of intention the law will not hold the assignee liable for the rent to the lessor. Underhill on Landlord and Tenant, vol. 2, p. 1087.
The evidence in question does not tend to vary or contradict the terms of the instrument but to establish the fact of a loan and that the assignment was made to secure the loan.
In Reynolds v. Blanks, 78 Ark. 527, it. was held that parol evidence is admissible to show that an assignment of a contract absolute in form was intended merely as security for a loan. As we have already seen, the disputed question of fact was submitted to the jury upon instructions to which no exceptions were saved.
The judgment will be affirmed.
