Smith v. Wooding , 20 Ala. 324 ( 1852 )

PHELAN, J.

Tbe counsel for tbe plaintiff in error, in tbe brief which he has submitted, argues very strenuously, that it was the duty of the court to have dismissed the suit of the plaintiff below, upon the statement made by him, that it was prosecuted for the benefit of another, and that he had been indemnified against the payment of costs, upon the ground, that it is the duty of the cour., “ to prevent its process from being abused, and turned into instruments of vexation and oppression.’’ In the first place, the record does not show, that any exception was taken by the defendant to the refusal of the court to grant his motion to dismiss; it is, indeed, more an inference, than a direct statement that any motion to dismiss was made. If the position intended to be assumed is, that the court should dismiss a suit in the case supposed, on its own mere motion, it is not tenable, for two reasons; First, the facts do not make out a case of “abuse of the process of the court.

A man who has a good cause of action may sell it to another, or make a gratuity of it, if he chooses, and the only restriction imposed by law upon the transaction is, that if the cause of action be not assignable, the suit shall be prosecuted in the name of him to whom it originally belonged, for the use of the transferree; and if the latter chooses to indemnify the former against costs, or if the former even stipulates for such indemnity, there is nothing unlawful about the matter. But if the facts even made out the case supposed, and these amounted to a defence to the action, they must be submitted to the jury, since our courts have decided uniformly, from an early day (Smith v. Seaton, Minor, 75), that the court, except in cases provided by statute, have no power to order a non suit (Hunt v. Stewart, 7 Ala. Rep. 525), against the will of the plaintiff.

The offer of the defendant to prove to the jury the statement made by the plaintiff to the court, was properly overruled. It does not plainly appear how this statement came to be made, whether it was voluntary or not; but we must presume it to be voluntary, as the court has no power to compel a party to make a statement in this way. There is much of this statement that is wholly irrelevant to the issue before the court, even as an admission of the plaintiff, and ihe offer to prove it as a whole, which was the offer made by defendant, conld be rightfully overruled by the court. He might also have admitted it, without error, as a pari of it was relevant; but in such a case the court is not bound to discriminate; that is the business of the parties themselves. Hrabowski’s Ex’r v. Herbert Daniel & Co. 4 Ala. Rep. 265.

The charge of the court lays down the broad proposition, that if defendant had either failed or refused to pay according to contract, or had refused to enter into writings, that plaintiff was entitled to recover.

The defendant took possession of the land under a verbal contract to purchase, and a part of this contract was, that he should pay “$500 down, and $500 twelve months after.” The proof shows, that he paid no money; that he remained in possession for more than twelve months, and then abandoned the possession, before the suit was brought. There is no proof that he failed or refused to pay the money because the plaintiff neglected or refused, upon application, to execute to him a deed or other written contract for the purchase and sale of the land, as a condition to his payment of the money. His failure to pay the money, then, was a violation of his contract, from the very day he took possession, as to the first $500, and a further violation, after twelve months, as to the second $500 ; which made him liable to the plaintiff at any time for the use and occupation of the land for the time he occupied it. The contract being for the sale of land, and not in writing, bound neither of the parties, under the Statute of Frauds, and it was in the power of either to disregard it altogther. But if the defendant was put in the possession of land under it, and then refused to comply with the contract on his part, without fault on the part of the plaintiff, the latter would be entitled to an action for use and occupation, to recover of the defendant whatever the possession of the land was.' reasonably worth.

A contrary doctrine was held for a time, under the imposing authority of Lord Mansfield, in the case of Kirtland v. Pounsett, 2 Taunton, 145, upon the construction of the English statute giving the action for use and occupation of land, (11 Geo. 2), of which ours is a copy, (Clay’s Dig. 505, § 1,) in which he held, that to authorize that action, the relation of landlord and tenant must exist, and that when a party enters under a contract of purchase, the idea of landlord and tenant is negatived.

The criticism of Mr. Baron Graham, in the Court of Exchequer, in Hull v. Vaughan, 6 Price, 157, upon that case, indicates the course of decision now generally adopted, in respect to the action for use and occupation. He says; “ It is not necessary, in this species of action, that the proper relation of landlord and tenant should be distinctly made out between the parties, because the action is calculated in form to meet cases where the parties do not bear these characters, if there be in point of fact an ownership on one hand and an occupation on the other; and it should be liberally applied where it may be found to be a party’s only remedy.” See, on this subject, Davidson v. Earnest, 7 Ala. Rep. 817, and authorities there cited.

If the view taken of the charge given by the court be correct, there was no error in refusing to charge that plaintiff was bound either to offer to enter into writings, or to demand of defendant that Ire should do so. The plaintiff’s right of action was complete as soon as defendant took possession of the land, and failed to pay the money he stipulated to pay, and as he stipulated to pay it.

There is no error in the record, and the judgment is affirmed.