Smith v. Gayle , 58 Ala. 600 ( 1877 )

BBICKFjLL, O. J.

This cause was before this court at the June term, 1874. The material question then presented and decided was, that the record of the judgment in the ejectment suit in the United States Circuit Court in favor of Harper against Graves, Scoggins and Gayle, who were tenants of the appellee, was not evidence against the appellee of the right of the plaintiff therein to recover, and the writ of possession issuing on that judgment did not authorize her ejectment from the premises.

The record now presents a different state of facts and a different question. The appellants, as we are informed by the bill of exceptions, introduced evidence tending to show that, prior to the institution of the ejectment suit, the appel-lee had rented the premises for the year 1867 to George Watt Gayle and Thomas E. Graves, who, with Scoggins, the other defendant in that suit, were in possession when the suit was commenced, when judgment was rendered therein, and when the writ of possession was executed by ejecting them and the appellee, the term of renting not having expired. The evidence on this point, the bill of exceptions states, was conflicting.

_ A recovery in ejectment, or in a real action under the Code, like judgments in personal actions, binds only parties and privies. — Cheval v. Reinicker, 11 Wheat. 280 (S. C. 2 Pet. 163); Ainslie v. Mayor of New York, 1 Barb. 168. A judgment against a tenant, is not evidence against the landlord, unless he was admitted to defend, or in fact joined with the tenant in making defense. — Hunter v. Britts, 3 Camp. 456; Ryan v. Rippey, 25 Wend. 432; Leland v. Toney, 6 Hill. 328. As between the parties, the effect of the judgment is to put the plaintiff in possession; the point decided is, that he has a title to the possession, better than that of either or all of the defendants. — Atkins v. Horde, 1 Burr. 113-114; Chapman v. Armstead, 4 Munf. 397. The action is possessory, and as it operates alone on the possession, it must be commenced against the parties in possession. — Tyler on Ejectment, 411; Bonner v. Greenlee, 6 Ala. 411. A tenant in possession, alt and anterior to the commencement of the suit, if he is not made a party defendant to the suit, cannot be ejected by the writ of possession, issuing on the judgment. He is a stranger to the judgment, and if in the execution of the writ of pos--session, he is ousted, the court from which the writ issue's, will on proper application restore him. — Ex parte Reynolds, 1 Caines, 500; Howard v. Kennedy, 4 Ala. 592; Hall v. Hilliard, 6 Ala. 43. But all persons entering under, or acquiring an interest from, or entering by collusion with the defendants, subsequent to the commencement of the suit, are privies bound by the judgment. — Hickman v. Dale, 7 Yerg. 149; Waller v. Huff, 3 Sneed, 82; Jones v. Childs, 2 Dana, 25; Jackson v. Tuttle, 9 Cowan, 233; Howard v. Kennedy, 4 Ala. 592. A landlord receiving possession from tbe tenant, pendente lite, is subject to be dispossessed by tlie writ of possession, wbicb may issue against tbe tenant. — Freeman on Judgments, § 171. Tbe principle is, that a party having a distinct possession of tbe premises, at tbe commencement of tbe suit, if that possession is to be disturbed by tbe judgment and writ of possession, must have an opportunity to defend, or be can not be dispossessed. If be has not such possession — if that resides in tbe tenants, who are made defendants, and pending tbe suit be acquires possession, be is a privy bound by tbe judgment, and subject to be dispossessed by tbe writ of habere facias. Tbe title and tbe right of possession may reside in him, but be must yield to the judgment, and when tbe plaintiff is put in possession, resort to bis action of ejectment, or other appropriate remedy, to assert and enforce bis right. As is said in Howard v. Kennedy, supra, “ if tbe law were otherwise, it would be in tbe power of tbe defendant, by changes of possession, to protract tbe litigation interminably.” In an action by tbe landlord, for tbe recovery of possession, tbe judgment against tbe tenant would not be evidence ; it would be res inter alias actoe, as was heretofore decided in this cause. It is tbe fact of entry into possession wbicb converts him into a privy, affected and bound by tbe judgment therein rendered, so far as its execution is concerned.

An attorney, in this State, has a general authority to superintend and direct tbe execution of process, issuing on judgments be may have obtained for bis clients. — Albertson v. Goldsby, 28 Ala. 711. He may give all such instructions to tbe officer having tbe process for execution, as tbe client could give, if personally present, and tbe process will afford Mm protection, to tbe same extent it would pretect the client. If tbe appellee bad not possession of tbe pre'mises at tbe commencement of tbe suit in ejectment; if .the possession of tbe premises was then in her tenants, who were defendants in the suit, and tbe possession continued in them until tbe rendition of tbe judgment, tbe appellee subsequently entering into possession, before their term bad expired, was subject to be dispossessed by tbe writ of possession. The appellant Smith, as tbe attorney of tbe plaintiff, could properly instruct tbe marshal, in the execution of tbe writ, to dispossess her, or any person entering into possession subsequent to tbe commencement of tbe suit. Tbe charge of tbe court is erroneous, if these were the facts, as tbe bill of exceptions states, there was evidence tending to prove. Tbe charge would, however, be correct, if tbe facts were that at the commencement of the ejectment suit the appellee had possession of the premises. Then the judgment in the ejectment suit would not affect her — the writ of possession would not be an authority for the disturbance of her possession: and the marshal ejecting her, the plaintiff, his agent, or attorney, commanding, encouraging, or assisting in its execution, would be trespassers. The effect of the charge given, is to exclude from the consideration of the jury, the evidence which tended to show, that at the commencement of the suit in ejectment, the possession was in the tenants, the defendants to that suit, and not in the appellee. The evidence which tended to establish this phase of the case, should have been submitted to the jury; as well as that which was in conflict with it, and the jury should have been instructed as to the law applicable to each state of facts.

The general principle is well settled, that if several participate in the commission of a trespass, the injured party may sue them jointly or severally, but it has never been supposed he could have several satisfactions. If he sues the trespassers jointly, there can not be an apportionment of damages among them, as the jury may suppose the one or the other to have been-, the more guilty in inflicting the wrong. There must in such case, be a joint, not a separate "assessment' of damages.— Callisor v. Lemons, 2 Port. 145. If the jury should assess the damages severally, it would not be an irregularity which would avoid the verdict necessarily; it would be optional with the plaintiff to have the verdict set aside, and take a venire de novo, or he could cure the irregularity by electing to take the damages assessed against either defendant, and entering a nolle prosequi as to the others. — Blann v. Crocheron, 20 Ala. 320. But if he takes judgment against each one, for the damages assessed against him, it will be reversed on error. — Layman v. Hendrix, 1 Ala. 212. Whether several, or only one participate in the trespass, the injury is single, and it is compensation for the injury the law contemplates. Hence, it is a general principle, that a release to one joint trespasser, or an acceptance of satisfaction from one, discharges all. — 1 Waterman on Trespass, 73, § 68; 2 Greenl. Ev. § 30; Stone v. Dickinson, 5 Allen, 29. The statute in express terms declares, that “ all receipts, releases and discharges in writing, whether of a debt of record, or a contract under seal, or otherwise, must have effect according to the intention of the parties to the same.” — Rev. Code, § 2685. The purpose of this statute, is to relieve these instruments from the artificial effect sometimes imparted to them at common law, defeating the expressed intention of the parties, or the purpose it was obvious they designed. If the purpose is to discharge a debt due by record, or by a specialty, aud that purpose is expressed in writing, it is not now material whether the writing is under seal or not; nor is it material though a smaller sum is accepted, than is really due. If the purpose is to release a part only of a demand, and not the whole, or one only of several jointly liable, it is a release only pro tanto. No other or greater effect can be given it, than the parties intended. A release to one of several joint contractors, though the creditor should retain the right to proceed against the others, would release them, to the extent that they could demand contribution from their associate who is released. It would have no other operation. The release of Harper, and the acceptance from him of three thousand dollars, on account of the use and occupation of the premises during the period she was deprived of the possession by the trespass complained of, satisfies the plaintiff’s right of recovery, in this action, to that extent only. A satisfaction to that extent, it is apparent the parties contemplated, and so it must operate, or the plaintiff would obtain a double satisfaction. If any larger operation was given it, the intention of the parties would be defeated. Harper stipulated for his own release, not for the release of the defendants to this suit. It was partial, not entire satisfaction, he proposed to make, and the plaintiff agreed to accept. The present defendants are benefited, not wronged. Contribution from Harper they could not have compelled, and their liability is lessened by the payment he has made, and the plaintiff has accepted. If the release had been intended to cover the entire cause of action embraced in the complaint — if it had been intended to accept the sum paid, in full satisfaction, such would be its operation, and all who participated in the trespass would be discharged. But it was partial compensation, for the loss of the use and occupation, and the discharge of Harper only, that was intended, and beyond that it is not available to the present defendants— Snow v. Chandler, 10 N. H. 62; Chamberlain v. Murphy, 41 Vermont, 110.

The judgment must be reversed and the cause remanded.