Yeam v. Dempsey 55 N.D. 259, 212 N. W. 852

*263Opinion.

The state of North Dakota could have dispossessed the respondent of his right as lessor to the crop in question but took no action to do so. *264The rights of the parties in this suit to the crop in question were before the trial court and were adjudicated in favor of the plaintiff and respondent as against the defendant. We are concerned here with the propriety of this adjudication. We are not concerned with the right 'of the land commissioner to make leases as he did with the appellant. This matter has recently been decided in what is called the Wittmayer Case, 54 N. D. 845, 211 N. W. 436.

The parties to this suit prior to the cancellation or attempted cancellation by the land commissioner of the respondent’s contract with the state were landlord and tenant, and there is here no dispute a-s to the binding character of the lease executed by them. The sole contention is, in substance, that the state having canceled the purchase contract of the respondent and having leased the premises to the appellant, all rights of the respondent were wiped out and that the appellant, in consequence, became the owner of the one-half share of the crop that worrld have been the undisputed property of the respondent had there been no cancellation of the contract. It will be seen at once that this contention places to one side the law applicable to the relations existing between the plaintiff and the defendant by virtue of their lease. The law applicable to the relation of lessor and lessee is in no way altered by the fact that the state has made claim to or substantiated a superior title to that of the lessor. In protecting the rights of the state as a fee owner or as a vendor under contracts for the sale of school lands, the legislature has made no exceptions to the general statutes governing the relations of landlord and tenant. It has not removed from the tenant the statutory duty of immediately informing the landlord of any proceeding to recover the property of which he (the tenant) received notice. Neither has it given to the tenant permission to attorn to the State so as to acquire a right to the crops superior to that of his landlord. Section 6091 of the Compiled Laws of 1913 is clearly applicable as between the plaintiff and the defendant. It reads as follows:

“Every tenant who receives notice of any proceeding to recover the real property occupied by him, or the possession thereof, must immediately inform his landlord of the same and also deliver to the landlord the notice, if in writing, and is responsible to the landlord for all damages which he may sustain by reason of any omission to inform *265him of the notice or to deliver it' to him if in writing. The attornment of a tenant to a stranger is void, unless it is made with the consent of the landlord or in consequence of a judgment of a court of competent jurisdiction.”

The stipulated record shows that the appellant, the tenant in this case, did not comply with any of the requirements of this section of our Code, which is mandatory in its nature. The appellant had notice of the action taken against the title of the respondent, his landlord, and was in duty bound to advise him of the same, a duty which he did not perform. The clear intent and purpose of this statute is to protect the landlord or lessor, if he be away from the premises, and the Legislative Assembly must have had in mind the fact that a lessor putting a lessee in possession would be apt to be away from the premises, and that the lessee or tenant would first receive notice of any attack upon or impairment, of the title of the lessor.

" Not only did the defendant neglect to inform his lessor of the threat of the state to dispossess him, but he immediately took steps to acquire a title to the crops superior to that of the lessor by becoming a tenant of the owner of the superior title, the State. The statute says that the attornment of a tenant to a stranger is void unless made with the consent of the landlord or in consequence of a "judgment of a court of competent jurisdiction. This provision of the statute was doubtless borrowed from California where it was enacted as early as 1855. See Thompson v. Pioche, 44 Cal. 508. As to. the effect of the statute the California court in that case said (page 515) :

“Whatever may be the rule at common law, it is clear that the statute must prevail. . . . The statute declares such attornment void— that is to say, void as between the landlord and tenant, but it is not necessarily void between the tenant and the party to whom he attorned.”

The court held that under such a statute it was not within the power of the tenant to destroy the relation existing between him and h'is landlord by attorning to another person, even to the owner of the land. Under such a statute it is the duty of the tenant who desires to improve his possessory right to first surrender possession to his lessor. Lowe v. Emerson, 48 Ill. 160; Ebersol v. Trainor, 81 Ill. App. 645; Stover v. Davis, 57 W. Va. 196, 49 S. E. 1023; 2 Taylor, Land. & T. § 629; *266Simmons v. Robertson, 27 Ark. 50; Bryan v. Winburn, 43 Ark. 28; 35 C. J. p. 1249.

Viewing tbe matter in this light and applying this interpretation to. the statute, the record shows that the appellant in this case neglected his duty in respect to the section quoted, having in view the possibility of profiting thereby to the detriment of the lessor, and that he attorned to the state as the owner of a paramount title. Whether or not this ever entered into the mind of the appellant, tire statutory requirement was never complied with under the stipulated facts and the attempted attornment was void. The appellant was at fault, and, in a respect, it may be said, that allowed the respondent unwittingly to permit the cancellation of the contract for the premises in question. This being the fact, the appellant should not be permitted to profit by his own fault. It is not necessary to set out in this connection the lease or any of the exhibits, being notices from the land commissioner, nor is it necessary to set out the leases with the state on the part of the appellant. The sole question is, did the cancellation of the respondent’s contract by the state, under the conditions stipulated and the facts found by the court, wipe out the respondent’s interest to his share of the crop of 1924, and permit the appellant to get the benefit thereof and take the same ? This we think it did not do and could not do. So far as this record shows the respondent still has the right to redeem from the foreclosure of the land contract.

The judgment of the lower court should be in all things affirmed and it is so ordered.

Birdzell, Ch. J., and Nuessle, Christianson, and Burke, JJ., concur.

Burr, J., being disqualified, did not participate; Honorable A. T. Cole, Judge of the First Judicial District, sitting in his stead.

On Petition for Rehearing.

Cole, District J.

The appellant has made an application for a rehearing of the foregoing case by a.petition regularly filed. Among other things, he claims there is a wrong construction placed upon the *267stipulated facts upon which, the case was tried, wherein this Court states that the stipulated record shows that the appellant did not comply W’ith any of the requirements of § 6097 of the Compiled Laws of 1913, and did not advise respondent of the letter sent to him by the state land commissioner, demanding the lease from him. The. appellant states that as a matter of fact the stipulation is silent on this point and so was the attorney for the respondent in the district court. He states further, the stipulation states only that respondent did. not receive notice of cancellation mailed by the board of university and school lands in January, 1924, and that he had no notice of such cancellation until August 25th. . The record however, shows that the appellant did know of the notice of such cancellation and could have notified his landlord Mr. Team, and it further shows that he had such notice as in good faith would cause him to and should cause him to notify his landlord under the provisions of the statute in question. It may be added that good faith and good intention would cause one to give such notice to the landlord in addition to the provisions of the statute, and the stipulation being silent on that particular fact, it is evident that if the appellant had fulfilled his statutory duty as required in reference to notice to his landlord, the attorney for the appellant would surely have had it in the stipulation.

The appellant also states that the court is in error in stating that the defendant not only neglected to inform his lessor of the threat of the state to dispossess him, but he immediately took steps to acquire title to the crops superior to that of the lessor. Then the appellant states the facts are, that the appellant merely complied with the demand made upon him by the state, that he pay rent, make a contract with the state or lose his crop. The rent paid by the appellant being $120, paid to the state, and the crop being a large one and of great value, the action of the appellant in effect was to take steps to acquire title to the crops, superior to that of the lessor. .If this was not so, he would not have rested upon the payment of $120 to make an opportunity for him to claim the entire share of the landlord running into thousands of dollars in value. The action of appellant is lacking in good faith and a statute coming into question in a law action will not be so constraed as to give countenance to what in good faith and equity belongs to another, that may be converted to a party under some particular rigid *268construction of law, when in good faith and equity he is not entitled to the same.

The appellant also complains of the court’s decision in reference to attornment and claims that there can be no attornment under the conditions that have been sot out in the main opinion, as the landlord’s title had ended with the cancellation of his contract for the purchase of the land and that the appellant made a new lease on different terms with the state. This contention is, in the judgment of this Court straining at the interpretation of the language of the statute. The statute is concerned with effect and not with words’, or a sterile interpretation-and application of the law. The deal with the state, if now the appellant could take the landlord’s share of the crop in question, was just as disastrous in effect and inequitable or unequitable as though appellant had been dealing with a private party, and the relation of landlord and tenant still existed between him and the respondent.

It is claimed by appellant that the respondent does not show any damages, on account of his failure to inform the landlord, being the respondent in this case, of notice of cancellation or intention to cancel, or to deliver it to him, if in writing. The facts stated in the opinion do show that if the contention of the appellant should be supported by this Court and the action of the trial court reversed, the damages would run into thousands of dollars.

The speculation in the petition for rehearing that the respondent waited from August 25th, until the 22d day of September before offering to repay appellant the $120 lease money with the state, that respondent was waiting to see how the crop would mature, is seemingly, under the facts in the case, rather far fetched and strained, and the idea cannot be adopted by this court.

The appellant further states that the provisions of the statute that: “The attornment to a stranger is void,” should not be applied to this case for the reason that the state of North Dakota is not and was not a stranger to the title here involved. Appellant claims that under § 320, Compiled Laws of 1913, the fee of this land was at all times in the state of North Dakota and. remained in the state of North Dakota until patent is issued. The facts in this case, however, show that so far as the dealings between the appellant and respondent, tenant and landlord, are concerned, the state has played the part of a stranger *269to any right in the crop, because of the fact of the lease of the 120 acres for $120 or $1 per acre, which had on it not only the appellant’s share of crop, but the share of crop of 'the landlord, the respondent, running into value of thousands of dollars.

The appellant insists that, if this court affirms the. judgment appealed from, the judgment should in any event be modified to tbe extent of $390.69, tlie amount of the respondent’s share of tbe twine and threshing bill paid by the appellant. It is true that the lease so obligates the respondent. It is likewise true that the trial court found the combined twine and threshing bill to be $781.38 and that in the judgment it omitted to charge the respondent with his one-half share. While the appellant predicated error on this failure to credit the respondent, such assignment was not argued in the brief and within the well established principles governing appellate practice the assignment was 'properly deemed waived when the original opinion was written. However, in the interest of justice it would seem that the respondent is entitled to be credited'with $390.69 and that the judgment should be thus modified. As so modified, the judgment is affirmed and the petition fbr rehearing denied.

Birdzell, Ch. J., and Nuessle, Burke, and Christianson, JJ., concur.

Burr, J., being disqualified, did not participate; Honorable A. T. Cole, Judge of tbe First Judicial District, sitting in bis stead.