110 Ark. 287 | Ark. | 1913
(after stating the facts). The important and controlling question in this case therefore is, which of the two leases dated October 31, 1910, was in fact offered in evidence, the one contained in the bill of exceptions or the one certified by the clerk in response to the writ of certiorari. After a careful study of the evidence we have concluded that while the call in the bill of exceptions might ordinarily identify either writing, the one in fact introduced is the one sent upon certiorari. We reach that conclusion because it appears to be the instrument recorded in record book 52 at pages 274 to 277, whereas the lease in the bill of exceptions does not appear to have been recorded at all.
This lease, which we therefore consider as the one offered in evidence, conveys the whole interest demised in the Anderson lease, and it is therefore academic to consider the difference in the obligation and liability which would have arisen under the short term lease, as compared with the one which extended beyond the expiration of the term of the original Anderson lease. A sufficient statement of the law for the purpose of this case is found in 18 Am. & Eng. Enc. of Law (2 ed.), 656, 657, where it was said: “A lessee parting with his interest in the whole of the leasehold estate, for the balance of his term, or with his interest, in a part of the demised premises for the entire term, constitutes an assignment pro tanto of the lease, and the person to whom such an interest is conveyed becomes an assignee of the term with all the rights and liabilities incident to such a position. It is immaterial by what kind of an instrument or conveyance the term is so disposed of. Thus, the grantee or nominal lessee becomes an assignee, if the lessee executes a quitclaim deed of his rights in the leasehold estate, or executes an instrument purporting to be a lease or demise of the premises for the balance of his unexpired term, or a period exceeding his term, or conveys the premises in fee simple. To constitute an assignment, the lessee must, however, part with his entire interest in the whole or a part of the premises.”
The liability of the assignee of a lease is conceded, and. is fixed by the authorities and the judgment therefore against appellant for the royalty on the coal mined by it was fully authorized and is therefore affirmed.
