¶1OPINION.
¶2"Whatever may be thought of the propriety, under our Constitution and Code, of demurring to evidence in jury trials, it can have no place in cases submitted to the court upon the law and the facts. The demurrer in this ease must be taken as an unnecessary motion to the court, to declare that the plaintiff had not made out his case. This would have been, if true, the duty of the court, without the demurrer. .
¶3There was evidence tending, and sufficient to show that the plaintiff' being entitled to the possession of the lot in question, had put defendant in as his tenant, and that defendant had agreed to pay rent, and had occupied under plaintiff. Also, to show the rental value, and that it was unpaid. This, unrebutted, entitled the plaintiff* to a judgment.
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¶5We are not advised by brief or otherwise, of the grounds upon which the court rested its decision, and casting about for them, fail to find any we think sufficient. Plaintiff was lessee of the United States Receiver of Hot Springs reserved lands. The Receiver’s power to lease under section 5 of the statute of 1870 (see acts of Congress of that year) was not restricted as to time, terms or conditions. The lease was made in 1876, and was for a year only, but it contained a clause for renewal at the lessee’s option, and by its terms, shows that it was contemplated that the lessee might remain in possession until the lots should be demanded. There was a covenant against sub-letting without the consent of the Government through its proper officer, but it can not be seriously contended that the sub-lessee could first enjoy the lands, and then take advantage of that. The lease expired just when the rents claimed of the sub-lessee began to accrue, but he was none the less in by the permission of plaintiff and holding under him. If the Government did not choose to interfere, and insist either upon a renewal, or redelivery, it did not concern the sub-lessee in any manner whatever. This case is precisely, in principle, like that of Clem v. Wilcox, as Admr., 15 Ark., p. 102. The Federal Government might have asserted its claim to re-entry, but did not. If the defendant did not choose to continue holding, under such circumstances, he, to say the least, had no rights in the land which plaintiff was bound to respect, or protect him in the enjoyment of, otherwise than as his tenant. He ought to have put his landlord “in statu quo,” before denying his right. It is not like the case where the tenant, from necessity and to save his term,attorns to a third party having a better title. The plaintiff might, at any time, if requested, have renewed the lease.
¶6Nothing is better settled, than that no one can be allowed to get possession under a contract of tenancy, and then make use of that possession as a means of defeating his landlord’s title, or obtaining any advantage adverse to his, or for enjoyment without compensation.
¶7The court erred in overruling the motion for a new trial.
¶8Reverse and remand with usual directions.