(after stating the facts). Appellants admit that the lease gave the lessor the right to sell the land, and that a sale terminated the lease; but they claim that they were entitled as damages to the payment of a reasonable valuation for the unexpired term. This they claim under the clause of the lease which provides that upon a sale of the land the lessor “shall remunerate the aforesaid John H. Miller in a reasonable amount for all damages he may sustain from sale of said land.” Their contention is inconsistent. If the lessor has the right to terminate the lease by a sale of the land, there can be no unexpired term; and it is evident then that the remuneration for damages sustained by the sale relates to compensation for amounts expended by the lessee for permanent improvements and for taxes paid by, him which were in excess of the usable value of the land. In no other way can the provisions of the lease be reconciled.
“Such a provision is not void as being repugnant to the ¡habendum of the lease. Any provision stipulating that during the term a lessor may enter or may terminate the lease is in a sense repugnant to words demising land for a fixed term, but such stipulations are found in most leases, and are not held void because repugnant to the words of the demise. If it is clear that the contract means that the lessee should take his estate subject to a defeasance by a sale of the demised property by the lessor, to hold the clause defining the reserved right of the lessor void because repugnant to the demise would be unwarrantable to defeat an intention which the parties have clearly expressed.” Jones on Landlord and Tenant, § 388, and cases cited.
It is next contended by the appellants that the suit was premature because it was brought before payment or tender was made. It was the contention of appellees that appellants had already been compensated for the damages sustained by them. It is true that the verdict of the jury was against their contention, but the court required the amount found by he jury to be due appellants to be paid into 'court for their use before judgment was rendered in favor of appellees for the possession of the land, and also rendered judgment in favor of appellants for the costs of suit. In this respect this case is different from that of Bunch v. Williams, 76 Ark. 102. In that case the court held that a tender was not necessary, and an absolute judgment was rendered in favor of the plaintiffs. Here there was a dispute, not as to whether a tender should have been made, but as to whether anything was due, and, the court having required that the amount found due should be paid before appellants were required to give up possession of the land, they are not prejudiced, and it is the settled rule of this court that a judgment will only be reversed for errors prejudicial to the rights of the appellant.
It is next insisted by appellants that there is no evidence to support the verdict of the jury that tire appellants did not pay $400 in consideration of the lease. They contend that appellant John H. Miller testified positively that at the time the lease was executed McAfee owed him $400, and the payment of this debt was a part of the consideration of the lease; and that this testimony stands uncontradicted. It is true that the testimony of John H. Miller is all there is on this point; but it -must be remembered that he is a party to the suit, .that no contention of this sort was made by him when his answer was first filed, but was interposed afterwards by way of amendment. Then, too, he testified about other matters in the case, and his testimony in that regard was flatly contradicted by other witnesses. These facts and some evasive answers made by him in regard to the alleged $400 debt bring the case within the rule announced in Skillern v. Baker, 82 Ark. 86, and we hold that there was evidence to support the verdict.
We find no error in the record, and the judgment will be affirmed.