Crawford v. Jones , 54 Ala. 459 ( 1875 )

BB1CEELL, C. J.

The complaint contains two counts-the first setting out a contract for renting for the year 1868, made at public auction, in December, 1867. To avoid the statute of frauds, it is averred the renting was at public auction, and a memorandum made by the clerk of the auctioneer, conforming to the statute, B. C. § 1683. The second count is on a contract of renting, made in January, 1869, for that year. An averment is made that the defendant, under the contracts of renting, had the use and occupation of the premises during each year. The memorandum made by the clerk of the renting in December, 1867, being introduced' as evidence, the defendant moved its exclusion, because it was not a sufficient note of the contract. The motion was rested on several specified grounds, not material to be considered in the view we take of the case. The defendant requested several charges which were refused, all founded on the supposed insufficiency of tbe memorandum, as a note of tbe contract, under the statute of frauds.

The complaint in each of its counts, avers every fact necessary to support an action for use and occupation, and would on proof authorize a recovery, though the contract, under which the defendant entered and occupied, was obnoxious to the statute of frauds. The contract of renting, though by the statute of frauds deprived of all force as a contract of lease, is evidence to explain the character of the defendant’s occupation and of the amount agreed to be paid as rent.— Hays v. Goree, 4 St. & Por. 170; Crommelin v. Theiss, 31 Ala. 412; Rainey v. Capps, 22 Ala. 288; Osgood v. Dewey, 13 Johns. 240; Morehead v. Watkins, 5 B. Mon. 288. The specific objection to the memorandum, as evidence, made in the court below, was its insufficiency under the statute of frauds. No other objection will be considered here. The objection in the court below, on that ground only, must, if the evidence is subject to any other objection, be deemed an implied waiver of it. — 1 Brick. Dig. 887, §§ 1193-94.

The refusal of the charges requested, if they asserted correct legal propositions, which we have not considered, was error without injury. The use and occupation of the premises in 1868, under the contract of renting, was not disputed as a fact. If it had been, the evidence of it is full and uncontradicted. The plaintiff’s right of recovery did not depend on the validity of the contract of renting, but on the fact of permissive use and occupation by the defendant. Without affecting this right, the invalidity of the contract of renting could be conceded. A charge requested, based on an immaterial inquiry, and not directing the attention of the jury to the material question for them to determine, is properly refused. — Bank of Mobile v. Brown, 42 Ala. 108; Martin v. Hill, Ib. 275.

Though a contract of renting is void under the statute of frauds as a lease, if the tenant enters and occupies under it, the relation of landlord and tenant is thereby created. The tenant owes to the landlord the fealty, and the landlord owes to the tenant the duty, which are the inseparable incidents of a lease executed in the manner the statute of frauds prescribes. The landlord may by distress, or other legal remedies, collect his rent, and the tenant may retain the possession against any known process of law. It follows, in an action for the recovery of rent or of possession, the tenant is estopped from denying the title of the landlord, unless he can show a bona fide eviction, under a paramount title, or that the title of the landlord pending the occupancy was extinguished. — Gudgell v. Duvall, 4 J. J. Marsh, 229; English v. Key, 39 Ala. 115.

The evidence of the title of another than the landlord under whom the tenant entered, and of the payment of rent to another, was inadmissible. It may be remarked, this evidence had reference only to the rent for 1869. The contract of renting for that year, though oral, having been made in January, was not offensive to the statute of frauds. Thereby the technical relation of landlord and tenant was created; and there can be no doubt the tenant was estopped from the title of the landlord.

The judgment is affirmed.