Bishop v. Lalouette's Heirs , 67 Ala. 197 ( 1880 )

SOMERVILLE, J.

— The Code of 1852 (§ 1667) conferred on courts of probate authority to grant letters of administration within their respective counties, among other contingencies, “ where the intestate, not being an inhabitant of the State, dies out of the county, leaving assets therein ” — the same provision occurring in section 2349 of the present Code (1876). The word “ assets,” as here used, includes both real and personal assets, and, therefore, comprehends land or real estate, according to its ordinary signification. 1 Bouv. Law Die. title Assets. Such property was and is expressly charged, by statute, with the payment of the decedent’s debts, and is estimated in fixing the penalty of the administrator, or executor’s bond. — Code 1852, §§ 1737,1683. The rents were lawfully collectable by the personal representative, and he could maintain ejectment for it, then as now. — § 1751; 1 Brick. Dig. p. 625, § 6.

The Probate Court of Baldwin county clearly had jurisdiction to grant letters of administration in the estate of Antoine Lalouette to Hall, which was done in the year 1861, although the only property of the decedent in the county consisted of real éstate.

The record of the proceedings of the Probate Court, showing the appointment of Hall as administrator, and the decrees, on final distribution, against him, in favor of the present plaintiffs in this suit, as heirs of Antoine Lalouette, was properly admitted in evidence by the Circuit Court, to prove'the fact of such administration,'and the heirship of the plaintiff. This point was so expressly decided in the case of Lalouette’s Heirs v. Lipscomb (improperly reported as Lalonette’s Heirs v. Lipscomb), in 52 Ala. 570 ; the defendant there, as here, having entered the premises sued for as tenants, under a lease from the administrator, the court said : “ The defendant rented from, and held under Hall, as the administrator of the estate, and was consequently a privy in estate with Hall as such administrator; and, being such privy, the recitals in the record of Hall’s settlement as to the heirship of the plaintiffs, are evidence against the defendants, to the same extent that they would be, in a proper case, against Hall himself.”

There are few principles of law better settled than that both tenants and their privies, in blood or estate, are estopped from disputing the title of the landlord under whom they hold, or of any one who succeeds to his rights, so long as they continue the possession originally derived from him. Hence, when sued for the possession of the demised premises by the landlord, or one surrendering to his rights, the tenant is precluded, as well after the termination of the lease as during its continuance, from calling the title of the plaintiff in question, or from setting up an outstanding title in a stranger, or third person. — Russell v. Erwin’s Adm’r, 38 Ala. 44; Shelton v. Eslava, 6 Ala. 230; Seaberry v. Stewart, 22 Ala. 207; 4 Wait’s Act. and Def. p. 258, § 2; Taylor’s Land, and Ten. § 629.

The rule might, of course, be otherwise, upon well settled grounds of reason, public policy, and principle, where the tenant had been induced to accept a lease through fraud, mistake, or misrepresentation. — Camp v. Camp, 15 Amer. Dec. p. 60 and p. 69, note.

The defendants, in this case, after the first action of ejectment against them brought by Hall, in which he recovered the premises here sued for, submitted to Hall’s claim as administrator of the estate of Lalouette, and paid him rent from the year 1867, to, and including, the year 1872. Hall was, of course, a mere trustee, representing the creditors of the estate, if any, and also the heirs. No debts being proved against the estate, his recovery enured to their benefit, between whom and himself there is manifest privity. Bennett v. Covelman, 48 Barb. (N. Y.) 73. It is, therefore, immaterial in this action whether the title of the plaintiffs is good or bad, or whether the lands sued for had escheated to the State of Alabama, or otherwise. These questions can not be raised by the defendants, so long as they continue to hold under their originally acquired possession, derived as tenants from Hall, the administrator.

It is objected, and further assigned for error, that the record shows a separate judgment entry against each of the several defendants in the court below. Conceding that this objection is taken in time, without being first urged in the lower court, the defect is a clerical error, or want of form merely, which can be corrected in the appellate court. Where there are more defendants than one, the statute authorizes the jury to “assess damages arising from the detention of the land [sued for] and injury thereto, in severalty, against each defendant for distinct damages.” — Code 1876, § 2964. Whether this confers the authority to enter a separate judgment or not against each defendant, the better and more proper practice is to have but one judgment entry, with the assessment of damages only in severalty.

Let the judgment of the Circuit Court be, accordingly, corrected here, and a judgment entered, with a writ of possession, against all of the defendants, for the premises, with costs, and with an assessment of damages in severalty, according to the verdict of the jury, — Code 1876, §§ 3155, 3943, 3946; Smith v. Kennedy, 63 Ala. 334; Jean v. Sandiford, 39 Ala. 317; Jackson v. Shipman, 28 Ala. 488.

Affirmed.