This case was brought on for trial at the regular November, 1924 term of the district court in Bottineau county, and it being a jury case, the attorneys stipulated in open court to waive a jury and try it before the court, the Honorable A.G. Burr, presiding. The facts were stipulated before the court and are as follows: *Page 261
1. That on or about December 1, 1905, the plaintiff purchased from the board of university and school lands of the state of North Dakota the following described premises situate in Bottineau county, North Dakota, to wit: The northeast quarter and the east half of the southeast quarter of section 36, in township 163, north of range 78, west of the fifth P.M., under a contract whereby the plaintiff paid in cash one-fifth of the purchase price for said lands and agreed to pay one-fifth of such purchase price on January 1st of the years 1911, 1916, 1921 and 1996, with 6 per cent interest on all deferred payments, payable in advance on January 1st of each year, and which contract further provided that the plaintiff would be entitled to a patent for said lands upon the completion of such payments; and further provided that in case of nonpayment into the county treasurer of said Bottineau county of the purchase price aforesaid as it became due, or the interest thereon by January 1st of each year, then such contract should become voidable at the option of the state of North Dakota through the board of university and school lands, and the state of North Dakota, through such board, could take possession of the said land and resell the same.
2. That on or about August 28th, 1919, the plaintiff and defendant entered into a lease of the said premises and 640 acres of other lands belonging to the plaintiff, in writing under the terms of which said lease the defendant was to farm the said lands during the year 1920, which said lease, marked Exhibit 1, is hereto attached and made a part of this stipulation. That the defendant E.M. Dempsey continued to farm the said land under the terms and provisions of the said lease which was renewed from year to year by the plaintiff and defendant up to and including the farming season of 1924, and during all of said time and until the end of the farming season of 1924 was in possession of all the lands described in said lease, exhibit 1.
3. That the defendant planted to crop in the spring of 1924 the lands described in paragraph 1 of this stipulation.
4. That the plaintiff, Thomas Yeam, furnished all of the seed for the planting of the crops that were sown and grown and harvested upon the said land in the year 1924.
5. That because of the failure of the plaintiff to make the payments required by said contract of purchase of said land described in paragraph 1, on or about January 31, 1924, the board of university and *Page 262 school lands of North Dakota declared said contract of sale void, and about the same date notified the plaintiff by written notice mailed to him at Long Beach, California, where plaintiff lived, and also mailed a duplicate copy of said notice at the same time to the auditor of Bottineau county, and ordered the land commissioner to take possession of the land described in said contract.
6. That the said notices of cancellation mailed by the said board of university and school lands to the plaintiff were not received by him, and that he had no notice that the said board of university and school lands had taken any action to declare the said contracts of sale void and to cancel the same until August 25, 1924, at which time he returned from California to Souris, North Dakota.
7. That sometime prior to July 31, 1924, the defendant learned of the cancellation of said contracts referred to in paragraph one hereof and received from the said land commissioner three letters which are marked exhibits 4, 5 and 6 and hereto attached and made a part hereof. That on July 31, 1924, the said defendant entered into two separate written leases with the said board of university and school lands, under one of which he leased the said northeast quarter of section 36, and under the other of which he leased the said east half of the southwest quarter of section 36, which said leases marked exhibits 2 and 3 are hereto attached and made a part of this stipulation, and paid to the state of North Dakota as rental for both of said tracts of land the sum of $120 and the sum of $3 for the drawing of the two leases therefor.
8. That the plaintiff had no notice or knowledge of the said leases made by the defendant until he returned to Souris, North Dakota, on or about August 25, 1924.
9. That the plaintiff on September 22, 1924, tendered to the defendant the sum of $120; that the defendant refused to accept the said money and that thereupon the said plaintiff deposited the same in the State Bank of Souris to the order of the defendant, where the said sum of $120 has ever since remained subject to the defendant's orders.
10. That there was harvested and threshed on the said northeast quarter and the east half of the southeast quarter of section 36, in the farming season of 1924, 2885 bushels of hard wheat and 1520 bushels of Durum wheat, which was sold by the said defendant for the sum of $5,834.65. *Page 263
11. That there was used in harvesting the said grain 660 pounds of twine, for which the defendant paid the sum of $105.60 and that the defendant paid for threshing said grain the sum of $675.78.
12. That prior to the commencement of this action the plaintiff demanded from the defendant the possession of an undivided one-half of the grain grown upon the lands described in paragraph one hereof then standing in shock on said land, but that the defendant refused to deliver the same to the plaintiff and retained the same and has ever since retained the same and the proceeds of the sale thereof.
13. That on September 23, 1924, pursuant to the affidavit and undertaking in claim and delivery and the summons and complaint in this action, the sheriff of said Bottineau county took into his possession an undivided one-half interest in the crops grown on said lands during the year 1924, and that on September 26, 1924, the said sheriff released the said crops to the defendant upon the furnishing to the said sheriff by the defendant of the bond required in § 7521 of the Compiled Laws of North Dakota for 1913.
14. That the said sum of $5,834.65 set forth in paragraph 10 of this stipulation shall be taken to be the value of all of the grain raised on the land described in said paragraph 10 during the season of 1924 and one-half of said sum the value of the undivided one-half interest in said grain claimed by the plaintiff, for all the purposes of this action.
The leases executed on behalf of the board of university and School lands by Carl R. Kositzky are a part of the record herein, as are also the several notices referred to and the original lease between the plaintiff and the defendant, and the court has them all before it in determining the case.
The record shows in this case that the State makes no claim to any part of the crop referred to, and therefore the issue is squarely before the court between the appellant and the respondent, the respondent and plaintiff in the lower court having recovered judgment for the one-half of the crop less the legal expenses charged up against it.
Opinion. 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. *Page 264 The 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 as 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 would 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 6097 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 *Page 265 him 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 his 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; *Page 266 Simmons v. Robertson, 27 Ark. 50; Bryan v. Winburn, 43 Ark. 28; 35 C.J. p. 1249.
Viewing the 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, the 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.