Powell v. Hadden's Executors , 21 Ala. 745 ( 1852 )

PHELAN, J.

— The argument of the counsel for plaintiff in error, contending that the process of attachment, given by statute for the recovery of rent, does not lie except in cases where the relation of landlord and tenant exists; and further, that this relation is not created between vendor and vendee of land, when the vendee has occupied the land, and a rescission of the sale afterwards takes place, and there remains an unsatisfied demand for use and occupation, may be conceded to be true, and yet, not affect a case where that very relation is created by the contract of the parties. The proof in this case was, that, as an inducement on his part to procure the consent of Mrs. Hadden to rescind the contract for the sale of the land, Lewis agreed to pay rent for the land. By this, the relation of landlord and tenant was created by express agreement. To agree to pay for the use and occupation of the land eo nomine, to pay rent, was to agree to establish between them the relation of landlord and tenant, and to bring with it, among other incidents, a lien upon the crop, and the right to the process of attachment in a proper case to enforce that lien. Clay’s Dig., 506.

Against the correctness of the explanation given by the judge to the first charge asked, it is insisted, that the charge as qualified is affirmative, and entirely overlooks the defence set up by Powell, that there had been a bona fide sale of the crop to him before the rescission was consummated, even if it should be admitted that the relation of landlord and tenant was created by the agreement to rescind the contract for the sale of the land.

In the first place, the charge is not affirmative in the sense in which I understand that term; certainly it is not a charge like that which is called an affirmative charge in the case of Roland & Heifner v.Ladiga, 21 Ala. The court was requested by the counsel for Powell to charge that “ the lien for rent under the statute” only existed in respect “to crops grown on the land after the relation of landlord and tenant has begun to exist.” This charge the court gave; but explained to the jury, that they were not 'to understand by these words that the crop must be planted or first begin to grow, after the relation begun to exist, to make a lien good, but, that if the crop was then “ growing or ungathered on the rented land,” the lien attached, although it may have been planted previous' to the existence of such relation. Now this charge is alleged to be erroneous, because it takes no notice of the defence set up by Powell, that he had purchased this crop of Lewis before Lewis agreed to pay rent to Mrs. Hadden on the rescission of the contract between them for the purchase of the land. The charge asked made but a single point, and the court, in the explanation which it gave, did not embrace any other, nor was it bound to do so. The explanation was proper.

That the defence set up by Powell was not overlooked in the instructions given to the jury is manifest, when we consider tbe entire bill of exceptions. The court did give an affirmative charge, to which no exception was taken. In order to authorize them to find the corn and cotton subject to Mrs. Hadden’s attachment, they were told, that they must be “satisfied from the evidence,” amongst other things, “that the agreement (of Lewis) to pay rent was made before the completion of the sale to the claimant ” (Powell) of his crop by Lewis. That defence then was no doubt fully considered by the jury.

The qualifications given to the two other charges asked of the court by plaintiff in error, are entirely proper, in view of the testimony relating to the rescission of the contract of sale between Lewis and Mrs. Hadden and .his agreement to pay rent. The substance of both was, that it did not matter whether Lewis remained on the land or not after the rescission in October, so far as plaintiff’s lien on the crop was concerned, if he agreed to pay rent for the land from the time of the making of the contract of purchase in January; the meaning of which I take to be this, speaking to the jury: If you find the crop subject to a lien for rent, which accrued before October, it does not matter, so far as this issue is concerned, whether any accrued after October or not. There was no error in this.

In Seamans v. White, 8 Ala., 656, it has been decided, that the assessment of the value of the property in a trial of the right of property, growing out of the levy of an attachment, is mere surplusage at all times. This disposes of the objection made to the verdict as assessing the value of the corn and cotton together, and not separately. It was not proper to do it either way.

The judgment below; describing the defendants in error as “plaintiffs in execution,” instead of “plaintiffs” simply, or “ plaintiffs in attachment,” and declaring the property levied on to be subject to the plaintiffs’ execution, instead of subject to plaintiffs’ attachment, presents in these particulars mere clerical misprisions, which will be considered as amended.

The judgment, below is affirmed.