| Ark. | Jan 8, 1912
(after stating the facts). The question to be decided is, did the court err in holding that the fund sought to be garnished was not subject to garnishment?
The writ of garnishment was sued out on July 18, 1910, but on April 22, prior thereto, the order by J. C. Wyatt, lessee of the Navarre Hotel from appellee, through his agent, the Arkansas Trust Company, of which Dave Burgauer, the payee in the order, was cashier, was made, presented to and accepted by Freeman, representative of Freeman Bros., subtenants of Wyatt, and garnishees herein. The rent was paid thereafter as directed in the order until the garnishment was served. This order from Wyatt, lessee of appellee’s hotel building, who was in arrears with the payment of his rent, was made on his subtenants, directing them to pay the rent thereafter to become due, including April, to Burgauer, who was in fact the representative and agent of appellee, owner of the building. By the terms of the lease, J. C. Wyatt, the lessee, being in arrears with the rent, appellee could have declared the lease forfeited and resumed possession of the entire building upon three days’ notice to quit, without regard to whether the subtenants were paying rent or to whom. Taylor on Landlord and Tenant, § 291. 2 Tiffany on Landlord & Tenant, § 137; 1 Underhill, Landlord and Tenant, § 632. Such being the case, the subtenants, the garnishees, could, without the order, have paid the rent directly to the lessor, or his agent and protected their right of possession. 1 Underhill on Landlord & Tenant, § 334. Their payments of rent under the order discharged not only their own indebtedness to the maker of it but the same amount of his indebtedness to the original lessor, as all the parties intended it should do.
' It is true, the order stipulated that the rent should be so paid “until further notice,” but it was made and accepted, and three months’ rent had been paid in accordance with its direction to the agent of the lessor by the subtenant before the garnishment was served on him, and no notice to the contrary had been given, and the lessee, the maker of the order, was still indebted to the lessor for rent, and it authorized the lessor to collect the rent directly from the subtenant, and amountea to an asssignment of the fund, the rents due and to become due to the payee, the agent of appellee, the lessor, and was not subject to garnishment for the debts of the maker, and the garnishment was properly dismissed. Hartley v. Tappey, 68 Mass. 565" date_filed="1854-11-15" court="Mass." case_name="Hartley v. Tapley">68 Mass. 565; Metcalf v. Kincaid, (Ia.) 43 Am. St. Rep. 393; Com’l. Nat’l Bank v. Portland, 60 Pac. 563; Jones v. Glover, 21 S. E. (Ga.) 50; Christmas v. Russell, 81 U.S. 69" date_filed="1872-01-22" court="SCOTUS" case_name="Christmas v. Russell">81 U. S. 69; 20 L. Ed.
The decree is affirmed.