Spear & Thomasson v. Lomax , 42 Ala. 576 ( 1868 )

BYRD, J.

In conformity to a rule of this court, we will notice those assignments of error insisted on as a ground of a reversal, in the argument of the counsel for appellants ; and we will proceed to do so in the order presented therein.

I. It is insisted that the court erred in overrulling the demurrer to the first count of the complaint, and for several reasons : 1. That there is no averment as to the location of the land. If it were necessary to aver that the land is in the county, the court would take judicial notice that the city of Montgomery is in the county of Montgomery. 2. That it does not “ show the defendants were tenants of the plaintiff.” It is averred the plaintiff was in possession of the land, “ and while so possessed, the defendants entered, thereon as tenants, until the first day of October, 1865.” In our opinion, this is a sufficient averment under the Code to sustain this action, so far as that question is concerned. The relation of landlord and tenant between the plaintiff and defendants, is not indispensable to the maintainance of this action. — Revised Code, § 3300. 3. That “.it fails to set out or aver any lease or contract establishing the relation of landlord and tenant between the plaintiff and defendants.” We do not think it necessary to the sufficiency of a complaint in a case of unlawful detainer, to set out or aver the lease or contract establishing the relation of landlord and tenant between the parties. — Code, § 3300. 4. That “ it fails to show any demand made in writing by tbe plaintiff to tbe defendants for the possession of the premises sued for.” It is averred that the defendants “refused on demand in writing.” It is not expressly stated that a demand was made by the plaintiff, but in accordance with -the rules laid down in the Code as to pleadings, we think that the averment is sufficient, though barely so. — Ferguson v. Carter, 40 Ala. 607. 5. That “ it fails to show that the defendants held over any term granted to them by the plaintiff.” This objection is answered by what has already been said. 8. That “ it fails to show that said premises were unlawfully detained from the plaintiff.” This was also not well taken. — 40 Ala. 610. The counsel rely on references to Ghitty on Pleadings to sustain these several grounds of demurrer, and I think some of them sustainable upon the established rules of pleading at common law, but the Code has made a serious and radical innovation on the rules of pleading as taught by Ohitty, Gould, Stephens and Saunders. And we sustain the first count of the complaint, upon the objections made to it in the court below, expressly upon the authority of tbe Code. — Revised Code? §§ 2629, 26S0 ; form for ejectment, Revised Code, p. 677.

II. There are two objections made to the second count. 1. That “ there is no demand of possession averred to have been made.” Upon the authority of the case of Steinson v. Gossett, 4 Ala.. 170, we hold that the court erred in not sustaining this objection to the second count. It avers a refusal of defendants to deliver possession of the premises, but it does not aver that a “ demand in writing to deliver the possession thereof to any one lawfully entitled thereto,” was made. It is of the essence of an unlawful detainer that possession is refused on demand in writing.

• The complaint filed in the justice’s court seems to be more definite than the complaint filed in the circuit court, and we can not see why the case could not have been tried de novo on the former complaint. But as the parties preferred to try it on the latter, and it being defective, and objection having been taken in the court below thereto, and overruled by the court, notwithstanding the sufficiency of the first complaint, and the first count of the second complaint, it is our duty to reverse the cause for the insufficiency of the second count, for it may have been that the verdict and judgment were rendered on that count. 2. That “ the second count is also liable to most of the objections taken to the first.” This point is made in the brief of counsel in this court, but the record does not show that it was made in the court below.

III. The next point made by appellant’s counsel is, that the suit being in the individual character of the appellee, she can not recover on her possession as executrix of Tenent Lomax, deceased.

The bill of exceptions does not purport to set out all the evidence introduced on the trial, and we are unable to determine what authority or power, the will of the decedent conferred on his executrix, if there was a will, and she appointed to execute it. Be this as ic may, we will proceed to pass upon the question as though the will was silent as to the lands of the testator, and she left to her authority under the law. By statute the personal representative is authorized to rent out the lands of the decedent, and may therefore maintain an action of ejectment to recover them. Golding v. Golding's Adm'r, 24 Ala. 122 ; Batton et al. v. Crow, 26 ib. 426.

As an action of unlawful detainer is founded .on the plaintiff’s possessory right, and the lawful possession of the defendant, and the wrongful holding over of the latter after the expiration of his possessory interest, and a demand in writing of the possession by the former, and. as the question of title can not arise in the action, (Russell v. Desplous, 29 Ala. 308,) it would seem, upon principle, to follow that a personal representative who had met alb the requirements •of the law, in order to entitle him to maintain an action of unlawful detainer, could do so either in his representative or individual character. Such has been the doctrine of this court as to the recovery of chatties, where the personal representative had previously held possession of the chat-ties sued for. And we can perceive no valid reason why the same rule should not be applicable to an action of unlawful detainer, where the personal representative had been in actual possession of the land. — Sims v. Boynton, 32 Ala. 353 ; Lomax's Exr's, 597, mar. p. 371, et seq.

IY. Appellants insist that the court erred in allowing proof “ to show a contract of leasing or rent by the plaintiff as executrix of Tenent Lomax, deceased, to defendants or Sayre,” against the objection of the appellants — although an objection was made to the proof, yet no exception or objection Was taken to the ruling of the court.— Gager v. Doe, ex dem. Gordon, 29 Ala. 341.

Y. That portion of the' testimony objected to which tended to show “ that the land or lot was rented by plaintiff, as executrix as aforesaid, to Bobinson and another, at $1,750,” if in any part legal, was properly not excluded on the objection made. We think that the price brought at public outcry, at or about the time of the expiration of the possessory interest of the defendants, would have been a circumstance for the jury to consider in arriving at the value of the rent. So much, therefore, was admissible evidence for the appellee under the other- facts shown by the reeord. — • Ward v. Reynolds, 32 Ala. 384; Foster v. Rogers, 27 ib. 606.

YI. It is insisted by counsel for appellant that the suit ■was prematurely brought, having been commenced “ the same day the demand was made.” We do not think so. If the lease had expired on the last day of September, the demand was properly made and suit brought, on the ninth day of October. — Parsons on Notes and Bills, 460, 463, and notes.

YII. Prom what has been said, the court did not err in refusing to give the first charge asked, and so of all the other charges. The court, under the evidence, properly refused to give them.

YIII. The jury should have assessed the value of the rent, and on motion, the court should have rendered a judgment for the same against the parties liable therefor. This course is in consonance with the principles of the common law and constitutional provisions, and the- Code is not so explicit as to require us to hold, that the judge and not the jury should assess the value of the rent. Such questions in courts of common law are almost, if not invariably, within the province of the jury; and to authorize a court to take them from the jury, .the law should be clear and Imperative. — See opinion of Best, C. J., in Looker v. Holcomb, 4 Bing. R. 188; Sedg. on Stat. & Const. Law, 313 ; Bruce, Adm'r, v. Barnes, 20 Ala. 219.

IX. The appeal bond in this ease does not cover costs* as required by section 3313 of the Code, and therefore no judgment for costs can be rendered on it by the circuit court. But the bond substantially conformsto section 3314 of the Code, and a judgment may be rendered thereon against the obligors jointly for whatever amount the sureties are liable under the evidence, and sections 3314 .and 3316 of the Code, to be assessed by the jury.

Judgment reversed and remanded.

Judge, J., not sitting.