Hightower v. Fitzpatrick's Heirs , 42 Ala. 597 ( 1868 )

BYRD, J.

I. We will dispose of the causes of demurrer assigned in the order argued by counsel. The first is, “ there is no averment of tenancy.” In the case of Spear & Thomasson v Lomax, at the present term, it is said the relation of landlord and tenant between the parties is not indispensable to the maintain anee of this action.

The complaint, as amended, avers a holding or possession of the premises by the defendant: but, perhaps, not such an one as is sufficient, if a proper objection had been made before verdict and judgment. The assignment in this case is too narrow and limited to avail the defendant. Tenancy in the sense of holding under a landlord, which is the one we must give the term as used in the demurrer, is not indispensable to the maintainance of the action ; and as the point that the defendant went into possession under “ an agreement to purchase” is not distinctly raised by the demurrer, the court, under the influence of section 26c6 of Code, did not err in overruling this assignment. — Henley v. Bush, 38 Ala. 640.

II. It was unnecessary for the plaintiffs to aver they were the only heirs of Phillip Fitzpatrick. If they were not, and it were proper that all his heirs should have joined in the action, it would have been a matter of defense by an appropriate plea.

III. Another objection is, “ there is no averment of actual possession.” Whether this refers to the possession of the plaintiffs or defendant, it is not well taken. If the plaintiffs have the right to the possession, and can so show, without relying on the merits of their title, (Code, § 3307,) this will be sufficient for the maintainance of the action so far as this question is involved.

IV. The last assignment is, “ there is no averment of actual possession within the last three years.” This is matter of defense by plea, and the complaint need not contain any averment of possession within tha1- time.

V. The argument of counsel for appellant fails to point out any valid objection to the judgment of the court, and we have not been able to detect any. Remedial statutes must be liberally construed, and if we were to hold that because the statute did not authorize a judgment of restitution of the lands, where the defendant had gained the case in the justice’s court, and the plaintiff appealed and gained it in the appellate court, it would be sticking in the bark of the statute in aid of a wrong-doer, leaving the injured party without remedy in the particular ease. The verdict would only settle the question of costs and perhaps the right to the possession, without giving the plaintiff the fruit of the litigation. Without any statutory provision giving any specific remedy where a purely statutory right or remedy is asserted, the courts would adopt analogous common-law remedies to forward the ends of justice. And this has been too long the practice of the courts to be now brought in question, or to need the aid of a reference to authority to sustain it.

VI. We do not think that, under the last assignment of error, that the appellant is entitled to a reversal of the cause upon the ground that the complaint does not contain a substantial cause of action. We are of opinion that there is sufficient substance in the complaint to sustain the judgment after verdict on issue joined. And this point, if it had been available on demurrer,, must be considered aS waived by tbe defendant taking issue on the complaint and going to trial without objection to the complaint on this point in the mode authorized by law. — Revised Code, §§ 2656, 2811; Eaton v. Harris, at January term, 1868,42 Ala. Such is the opinion of a majority of the court. My opinion is that the question not having been raised, or insisted on, in tbe brief of counsel, we are not bound to consider it, much less to reverse the case thereon, even if the complaint was totally devoid of substance. This court should not allow a party, after verdict and judgment, to avail himself of a ground of demurrer in this court which he did not raise in his demurrer.

Judgment affirmed.