Collins v. Mountain , 53 Ala. 201 ( 1875 )

BRICKELL, C. J.

The demurrer interposed to the complaint, is not set out in the record, and it is impossible to say whether it should have been sustained or overruled. It may have been a mere general demurrer, not assigning specific causes, which the court was bound to overrule — or, if it assigned specific causes, the complaint may not have been obnoxious to them, though in other respects defective. In this state of the record, wc must presume the demurrer was correctly overruled.

Whether the appellee, who was plaintiff in the court below, was competent as against the appellants,- who are heirs of Amos Parsons, deceased, to testify to the statements, acts or declarations of the decedent, tending to establish that he was the tenant of the appellee, it is not material to inquire. He was competent to prove these facts as against the appellant Collins, who did not stand in the relation of heir to the decedent. When in an action against two or more, evidence is offered, which is admissible against one or more of the defendants, but inadmissible against others, it cannot be excluded. The defendants as to whom it is inadmissible, can protect themselves against injury, by requesting a charge limiting its operation to the defendants against whom it is admissible. Palmer v. Severance, 9 Ala. 751; Falkner v. Leith, 15 Ala. 9; Lawson v. State, 20 Ala. 65; Goodman v. Walker, 30 Ala. 482.

The proceeding in this cause, we suppose was instituted under the local act of March 3d 1848, entitled, ‘-An act to provide a more efficient remedy in cases of unlawful entry and detainer in the city of Mobile.” Pamph. Acts, 1847-8, p. 97. The eleventh section of this act, extends the remedy it provides, to any person claiming by, through or under the tenant, or to any person who shall take possession, on the desertion or abandonment of the premises during the term,- or before their delivery to the lessor. There was evidence tending to show that the premises were in the possession of Amos Parsons, the yearly tenant of the appellee. After his death, and before a surrender of the possession to the appellee, the appellants entered. If they entered under Nellie Tart, the claim to possession she asserted was as heir of Amos Parsons. It is certain the appellants could have been guilty, under this statute, of an unlawful detainer, although they were not tenants of the appellee, but the tenants of Nellie Tart. She claimed by, through or under the tenant of the appellee, and the defendants entering after the termination of the tenant’s possession by his death, and before surrender of possession to the appellee, are amenable to this action. This statute has been construed by this court, “to provide a speedy and efficacious remedy against one who obtrudes himself upon the premises, between the outgoing of a tenant and the delivery to his lessor, and who avails himself of the departure of the tenant to enter, before the premises are delivered to the landlord, and within such a time that the continuity of the possession is not broken.” Russell v. Desplous, 29 Ala. 308. It is not material that the . appellants entered into possession as tenants of Nellie Tart. They entered soon after the death of Amos Parsons, before surrender of possesion to his lessor; and if, as the jury may have believed from the evidence, Nellie Tart, and the appellants obtruded themselves upon the premises to intercept their surrender to the lessor, there cannot be a doubt of their guilt as averred. The first and fourth charges requested by the appellants, were therefore correctly refused.

The other charges requested by the appellants were properly refused. A lease to Nellie Tart, not ratified by her husband, may by reason of her coverture be void. Her unauthorized renting of the premises, may not have affected the heirs of Amos Parsons, who were in possession. This could not relieve the appellants from liability to this action, if they claimed under Amos Parsons, and he was the tenant of the appellee; or, if they obtruded themselves into possession, before a surrender to the appellee, so soon after the death of Amos Parsons, that his possession and their possession could be treated as continuous. Russell v. Desplous, supra.

Ve find no error in the record, prejudicial to the appellants, and the judgment is affirmed.