Couch v. McKellar , 33 Ala. 473 ( 1859 )

STONE, J.—

It is not necessary in this case to consider or decide whether, in the case of a sale, or other determination of the lessor’s title during the term of the lease, the law arms the new landlord, when the lessee holds over after the termination of the lease, with the right of considering such holding over as a renewal of the lease. See Harkins v. Pope, 10 Ala. 493; Chitty on Con. 287; Conway v. Starkweather, 1 Denio, 113; Farmers’ and Mechanics’ Bank v. Ege, 9 Watts, 436; Webber v. Shannon, 3 Hill, (N. Y.) 547; Young v. Buchanan, 10 Gill & Johnson, 149; 2 Platt on Leases, 521; Buckworth v. Simpson, 1 Crompton, Mees. & R. 833; Arden v. Sullivan, 14 Ad. & Ellis, (N. S.) 832; Addison on Con. 976; 3 Kent’s Com. (9th ed.) 614; Jacques v. Short, 20 Barb. (S. C.) 269; Moore v. Johns, 2 Speer’s Law, 288; Roe v. Ward, 1 H. Blacks. 97 ; Cole v. Patterson, 25 Wend. 456; Abeel v. Radcliff, 13 Johns. 297; Crommelin v. Thiess, 31 Ala. 412.

There is a feature of this case, which must work its reversal. The record informs us that Jones and McKellar, as administrators of Howard, leased the premises to Couch for the year 1855. This recital shows, that as to these parties, the title of the store-house, and the ground on which it stood, was in the heirs of Howard. McKellar, at that time, had no title to the lot. The record informs us, also, that when McKellar instituted his suit, he had never been in actual possession. The title he offered and proved was a deed from his co-administrator to him, dated in April, 1856. Couch, the lessee, had not received the possession from McKellar, by or under any contract made with the latter in his personal capacity; and hence, the doctrine, that a tenant cannot dispute the title of the landlord under whom he holds, has no application. The only claim of Mr. McKellar rests on a contract, which, he says, the law implies from the circumstances. Never having been in actual possession, and there being no express contract for the year 1856, the law will not imply a promise from Mr. Couch to him for the use and occupation, in the absence of a title in him. The sale of the premises, without a deed made, conferred no such title as would draw to it the constructive possession.—Presnell v. Ramsour, 8 Iredell’s Law, 505. See, also, Smith v. Wooding, 20 Ala. 324.

The third charge asked should have been given.

Judgment of the circuit court reversed, and cause remanded.