Patton v. Lloyd

¶1(dissenting) :

¶2I dissent.

¶3No testimony was given at the trial of' this case, and the matter was decided solely upon some contracts, leases and deeds introduced into evidence. We, therefore, are in as good a position to determine the matter as was the trial judge, since he was not called upon to determine the truthfulness of any testimony given.

¶4The facts of this case are substantially as follows:

¶5The Lloyds rented a 5.89 acre tract of land from the Fraziers, for which they agreed to pay $600 per month. They sublet a part of the leased land, and the sublessee has at all times paid the Fraziers the sum of $600 per month, being the rent on the entire tract of land. Frazier sold slightly less than one half of the land to the Pat-tons, who are now the owners thereof. Notice of the sale was given by mail to the Lloyds. The Pattons and the Fraziers never at any time agreed on the proportionate share of the rental which would be due on the land sold. No rent money has ever been paid to the Pattons, and this declaratory action was instituted to have the court determine the respective rights and duties of the plaintiffs and the defendants under the lease agreement entered into-by and between the defendants and the *59Fraziers and to determine whether or not the defendants are in default under the terms of the lease agreement relating to 2.08 acres described in some exhibits attached to the complaint.

¶6The trial court found that approximately one half of the land under lease was sold to the plaintiffs and that plaintiffs had not received any rent thereon. He then concluded as a matter of law that defendants were delinquent in rental payments to the plaintiffs and owed to them the sum of $10,200, being 34 months’ rent at the rate of $300 per month, and awarded judgment to the plaintiffs in that amount. The defendants appeal.

¶7When rented land is sold, the rentals pertaining thereto pass with the land absent a specific reservation therefor; and after notice to the tenant of the transfer, the rents due on the land must be paid to the new owner.1

¶8The rentals applicable to the land purchased by the plaintiffs have never been ■determined and cannot now be ascertained without the Fraziers and/or their heirs being made a party to the proceeding for the reason that any amount given to the Pattons must be deducted from the Fra-ziers.

¶9The defendants ask us to remand the case so as to permit the Fraziers to be made parties hereto. It seems to me that they are indispensable parties to a determination of the matter, and whether the defendants make them parties as they wish to do or whether the plaintiffs should have made them parties in the beginning seems to be immaterial. An interesting phase of this case is that Leon Frazier, now deceased, was a lawyer and represented the defendants herein at trial. His own conflict of interest may have tended to prevent his raising the question of lack of an indispensable party at the time of trial.

¶10Ordinarily this court will not consider a matter on appeal which was not presented to the court below. In view of the fact, however, that defendants’ lawyer would have been the indispensable party, I think the usual procedure should not be followed and we should require the trial court to consider this matter on its merits when the necessary parties are before it and when proof could be made regarding the proration of the reserved rent.

¶11For all we know, the land purchased by the plaintiffs may be swampy land under water or may be located on a steep mountainside, and I do not see how the court can determine the rent without testimony.

¶12Since neither the plaintiffs nor the defendants knew what the proper share of the reserved rent would be as it applies to the land sold to plaintiff, I do not see how plaintiffs were in any position to make a demand upon the defendants for any rent at all, since they had no agreement with *60them. Until a demand for the proper amount was made by the plaintiffs, it seems to me that the defendants would be entitled to continue to pay the rent to the Fraziers and let the plaintiffs and the Fraziers dispute as to the amount which belonged to each party.

¶13I would reverse the judgment and remand the case to the trial court for proper proceedings after all indispensable parties are joined therein. Costs should be awarded to the appellants.